Mukoma v Githere & 5 others (Application 11 of 2015) [2018] KESC 25 (KLR) (19 September 2018) (Ruling)

Mukoma v Githere & 5 others (Application 11 of 2015) [2018] KESC 25 (KLR) (19 September 2018) (Ruling)

1.Upon perusing the Notice of Motion application dated 25th June, 2014 and filed on 28th June, 2014 and brought under the provisions of Articles 163(4)(b) & (5) of the Constitution as well as Rule 24 of the Supreme Court Rules, 2012 for review of the judgment and order of the Court of Appeal in Nairobi Civil Appeal No. 197 of 2011 dated 25th July, 2014; and
2.Upon considering the affidavits by Rachel Wairimu Mukoma and James Kanyoro Njuguna both sworn on 25th June, 2014; and the 1st Respondent’s Replying affidavit sworn by Hannah Wambui Githere on 24th August, 2015 and filed on 17th September, 2015; and
3.Upon reading the written submissions by the Applicant dated and filed on 23rd September, 2015 wherein the Applicant contends that the intended appeal raises issues of general public interest in that the Applicant’s right to access to justice and fair hearing under Articles 48 and 50 of the Constitution had been violated; that the proceedings relied upon by the Court of Appeal in its deliberation and determination were unintelligible and/or incomprehensible; that there was a question arising for determination on the powers of the Court of Appeal under Section 3 of the Appellate Jurisdiction Act where the record of the High Court was unintelligible with regards to one party and therefore violating its right to appeal; and
4.Upon reading the 1st Respondent’s submissions dated 14th October, 2015 and filed on 15th October, 2015 where it was submitted that the Applicant’s application was not properly before this Court having violated the procedural provisions of Rule 31 of the Supreme Court Rules, 2012; that unintelligibility or inconsistency of the proceedings was not a ground for certification by this Court; and that the issues raised in the instant Appeal were not issues of general public importance as they involved family land and/or property; and
5.Upon further noting that the 1st Respondent contends that the issues in dispute relate to private law, i.e. family law and the right to ownership of land, which are not issues that translate to issues of general public importance to warrant the intervention of this Court;
6.And having considered the application, by a unanimous decision of this Bench, we make the following orders under Section 23(2)(b) of the Supreme Court Act and Rules 21 and 23 of the Supreme Court Rules;
Ordersa.The Notice of Motion application dated 25th June, 2015 and filed on 28th June, 2015 is hereby dismissed, with costs awarded to the 1st Respondent.
Reasonsa.The application does not satisfy the principles set out in the case of Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone SC Civil App No. 4 of 2012; (2013) eKLR where it was stated;
“Before this Court, ’a matter of general public importance’ warranting the exercise of the appellate jurisdiction would be a matter of law or fact, provided only that: its impacts and consequences are substantial, broad-based, transcending the litigation-interests of the parties, and bearing upon the public interest. As the categories constituting the public interest are not closed, the burden falls on the intending appellant to demonstrate that the matter in question carries specific elements of real public interest and concern.”(Emphasis added).b.The issue of incomprehensible and/or unintelligible proceedings is not a ground for consideration for certification that a matter is one of general public importance or to warrant intervention of this Court.c.Costs follow the event.
DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF SEPTEMBER 2018M. K. IBRAHIM J. B. OJWANGJUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURTS. C. WANJALA N. S. NDUNG’UJUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURTI. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA
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