Sum Model Industries Ltd v Industrial & Commercial Development Corporation

(Civil Application 1 of 2011) [2011] KESC 5 (KLR) (Civ) (2 December 2011) (Ruling)
Sum Model Industries Ltd v Industrial & Commercial Development Corporation [2011] eKLR
Neutral citation: [2011] KESC 5 (KLR)

REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA
CIVIL
CIVIL APPLICATION 1 OF 2011
PK TUNOI & SC WANJALA, SCJJ
DECEMBER 2, 2011

BETWEEN
SUM MODEL INDUSTRIES LTD .......................................................... APPLICANT

AND
INDUSTRIAL & COMMERCIAL DEVELOPMENT
CORPORATION .................................................................................. RESPONDENT

(An application for leave to appeal against the judgment and decree of
the Court of Appeal given at Nairobi (Omolo, Bosire & Githinji, JJA)
dated 8th June,//2007// in NAIROBI CIVIL APPEAL NO. 229 OF 2001))

Necessity of obtaining certication from the Court of Appeal before approaching the Supreme Court
on matters of general public importance
The Court emphasized the necessity of obtaining certification from the Court of Appeal before approaching the
Supreme Court on matters of general public importance. It dismissed the application, stating that the applicant
had failed to comply with procedural prerequisites and declined to invoke its special jurisdiction under section 14
of the Supreme Court Act.
Reported by John Ribia
Jurisdiction - jurisdiction of the Supreme Court - Supreme Court's Appellate Jurisdiction - appeal as of right -
certification process - certification by the Court of Appeal - application for review of Court of Appeal judgment
- circumstances when the Supreme Court can invoke its special jurisdiction and call for a review of the Court of
Appeal’s judgment where one sought to bypass certification by the Court of Appeal and sought certification at the
Supreme Courts - whether bypassing the Court of Appeal and approaching the Supreme Court to certify a matter
as one of public importance warranting determination by the Supreme Court was an abuse of the process of court -
Constitution of Kenya 2010, article 163(4)(b); Supreme Court Act section 14; Supreme Court Rules, rule (30)(2).

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Brief facts
Sum Model Industries Ltd led an application seeking leave to appeal against a judgment of the Court of
Appeal. The applicant argued that the matter involved issues of general public importance and sought direct
access to the Supreme Court. The application cited rules 30(2) and 42(1) of the Supreme Court Rules and
various constitutional provisions.
The respondent, Industrial and Commercial Development Corporation, opposed the application, contending
that the Supreme Court lacked jurisdiction in the absence of certication by the Court of Appeal.
Issues
i. Whether bypassing the Court of Appeal and approaching the Supreme Court to certify a matter as
one of public importance warranting determination by the Supreme Court was an abuse of the process
of court.
ii. Under what circumstances should the Supreme Court invoke its special jurisdiction under Section 14
of the Supreme Court Act to review decisions of the Court of Appeal?
Held
1. The appellate jurisdiction of the Supreme Court was set out under article 163(4) of the Constitution
as read together with rule (30) (2) of the Supreme Court Rules. Before an appeal under the provisions
could be entertained; either the Supreme Court or the Court of Appeal had to be satised that it
involved a matter of general public importance. Upon being so satised, the Court could then issue a
certicate for leave to appeal. The applicant had not cited article 163(4)(b) of the Constitution as the
basis for the application before the court.
2. The application being for leave to appeal against a decision of the Court of Appeal, it would have been
good practice to originate the application in the Court of Appeal which would have been better placed
to certify whether a matter of general public importance was involved. It was the Court of Appeal
which had all along been seized of the matter on appeal before it. That court had the advantage of
assessing the facts and legal arguments placed and advanced before it by the parties. The Court of
Appeal should have ideally been aorded the rst opportunity to express an opinion as to whether an
appeal should lie to the Supreme Court or not.
3. If dissatised with the Court of Appeal’s decision in that regard, the applicant would then be at
liberty to seek a review of that decision by the Supreme Court as provided for by article 163(5) of
the Constitution. To allow the applicant to disregard the Court of Appeal against whose decision it
intended to appeal and go directly to the Supreme Court in search of a certicate for leave, would lead
to abuse of the process of court.
4. The Court could not invoke the special jurisdiction and call for a review of the Court of Appeal’s
judgment under section 14 of the Supreme Court Act as prayed by the applicant as a perusal of the
documents in support of the application had not disclosed any facts that would bring the application
within the ambit of section 14 of the Supreme Court Act.
Application dismissed.
Orders
i. Civil Application Number 1/2011 was to be to be filed before the Court of Appeal pursuant to article
163(4) of the Constitution for determination by the said Court.
ii. Same Order was to be to be applied to Civil Application Numbers 2 of 2011 and 3 of 2011
Citations
None Mentioned
Statutes
East Africa
1. Constitution of Kenya, 2010 articles 10;159;163(4)(b)(5) - (Interpreted)

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2. Supreme Court Act, 2011(Act No 7 of 2010) sections 3, 14 - (Interpreted)
3. Supreme Court Rules, 2012(Act No 7 of 2010 Sub Leg) rules 30 (2); 42 (1) - (Interpreted)

RULING

Ruling Of The Court

2. The Appellate Jurisdiction of the Supreme Court is clearly set out in Article 163 (4) of the
Constitution. The Article provides that appeals shall lie from the Court of Appeal to the Supreme
Court:-

(a) As of right in any case involving the interpretation or application of this Constitution; and

(b) In any other case in which the Supreme Court, or the Court of Appeal certies that a matter
of general public importance is involved, subject to clause (5).
Clause 5 provides that a certication by the Court of Appeal under clause 4 (b) may be
reviewed by the Supreme Court, and either armed, varied or overturned.

3. Rule 30 (2 ) of the Supreme Court Rules provides that where an appeal lies only with leave or on a
certicate that a point of law of general public importance is involved, it shall be necessary to obtain
such leave or certicate before lodging the notice of appeal.

4. In our view, the relevant provisions pursuant to which this application must be initiated are Article
163 (4) (b) of the Constitution as read together with rule (30) (2) of the Supreme Court Rules. It is
clear to us that before an appeal under these provisions can be entertained; either the Supreme Court
or the Court of Appeal must be satised that it involves a matter of general public importance. Upon
being so satised, the Court may then issue a certicate for leave to appeal. We are surprised to note
that Counsel for the applicant has not cited Article 163 (4) (b) of the Constitution as the basis for the
application before us. Instead, the application has been brought (with the exception of rule 30 of the
Supreme Court Rules), under either general provisions of the Constitution, or provisions that bear
no relevance to the application.

5. This being an application for leave to appeal against a decision of the Court of Appeal, it would be good
practice to originate the application in the Court of Appeal which would be better placed to certify
whether a matter of general public importance is involved. It is the Court of Appeal which has all
along been seized of the matter on appeal before it. That Court has had the advantage of assessing
the facts and legal arguments placed and advanced before it by the parties. Accordingly, that Court
should ideally be aorded the rst opportunity to express an opinion as to whether an appeal should
lie to the Supreme Court or not. If the applicant should be dissatised with the Court of Appeal’s
decision in this regard, it is at liberty to seek a review of that decision by this Court as provided for by
Article 163 (5) of the Constitution. To allow the applicant to disregard the Court of Appeal against
whose decision it intends to appeal and come directly to this Court in search of a certicate for leave,
would lead to Abuse of the Process of Court.

6. With regard to the question as to whether this Court should invoke its special jurisdiction and call for
a review of the Court of Appeal’s judgment under section 14 of the Supreme Court Act as prayed by
the applicant, we decline to invoke the special jurisdiction as our perusal of the documents in support

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 of the application has not disclosed any facts that would bring the application within the ambit of
section 14 of the Act.
Accordingly, and in view of the foregoing reasons, we make the following Orders:-
“order
1.That Civil Application Number 1/2011 be led before the Court of Appeal pursuant to Article
163(4) of the Constitution for determination by the said Court.
2. That the foregoing Order be applied to Civil Application Numbers 2 of 2011 and 3 of 2011 on the
basis of the reasons advanced in this application.”
DATED AND DELIVERED AT NAIROBI THIS 2ND DAY OF DECEMBER, 2011.
HON.JUSTICE P.K.TUNOI HON. JUSTICE (DR) S.C. WANJALA
SUPREMECOURT JUDGE SUPREME COURT JUDGE

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