How the Supreme Court determines matters of general public importance

BY ANN ASUGAH

The Supreme Court of Kenya is established under Article 163 of the Constitution of Kenya, with exclusive original jurisdiction to determine disputes relating to the election of the President. The Court also has appellate jurisdiction to hear appeals from the Court of Appeal, as a matter of right, in matters of Constitutional interpretation and application, and appeals where a matter has been certified as one of general public importance, commonly known as GPI. The certification of any matter as one of GPI may be reviewed by the Court, which may affirm, vary or overturn such a decision.

Article 163 (4) (b) of the Constitution vests the power to certify a matter as one of GPI in the Court of Appeal or Supreme Court. It is clear from the provisions of the Constitution that the certification process was intended to be a filter for matters that come to the Supreme Court. In essence, the Court of Appeal, which is the first Court for the certification process, filters matters before they reach the Apex Court. In the Sum Models Case, SC. App 1 of 2011, Tunoi and Wanjala SCJJ held that:

“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 afforded the first opportunity to express an opinion as to whether an appeal should lie to the Supreme Court or not. If the applicant should be dissatisfied with the Court of Appeal’s decision in this regard, s/he is at liberty to seek a review of that decision by this Court as provided for by Article 163 (5) of the Constitution.”

The Constitution does not outline the considerations as to what constitutes GPI. In order to bring lucidity to the question of what constitutes GPI, the court has delineated certain criteria to be considered before a matter can be considered as one of GPI.  This was in the case of “Hermanus Philipus Steyn vs Giovanni Gnecchi-Ruscone, SC. App 4 of 2012”. This case revolved around the question of damages payable to a commission agent for brokerage services rendered.  In his application, the applicant cited the grounds for consideration as a matter of public importance as follows:

“… This case is of general importance to a class of litigants in Kenya comprising brokers and commission agents in so far as this is the only case so far in Kenya which involves the award of damages to a commission agent for an alleged breach of a commission note for brokerage on an actual price… And that This case involves matters of general public importance to all business people in Kenya including all agents and investors who should know what the criteria are for the determination of the quantum of an award of damages for the breach of a commission contract for brokerage on a stated price…”

After careful analysis of the facts and the law in the instant case, the Court with a 3:2 majority held that this case was not one that merited consideration as one of GPI, and went further to state seven guiding principles to be considered when deciding if a matter is one of GPI.

Guiding principles
First, one must satisfy the Court that the issue for determination is one which transcends the circumstances of the particular case, and has a significant bearing on the public interest. Two, where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest. Three, such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination.

Four, where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination. Five, mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court;  the matter to be certified for a final appeal in the Supreme Court must still fall within the terms of Article 163 (4)(b) of the Constitution.

Six, the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance” which he or she attributes to the matter for which certification is sought. Lastly, determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court.
In their dissenting opinion Ibrahim and Ojwang SCJJ observed that the matter at hand involved a matter of GPI, and would have granted leave to the applicants to file a substantive appeal to the Supreme Court, on the basis that the issues raised were questions of law and had not been settled. This was because at common law, a broker could only earn damages on breach of a commission agreed on the amount of money ascertained. It was therefore important to settle the question of quantum of damages payable to brokers when there is a breach of contract.

In the case of Malcolm Bell, the Court adopted the dissenting criteria of Ojwang and Ibrahim SCJJ on the question of GPI as follows: “Issues of law of repeated occurrence in the general course of litigation; questions of law that are, as a fact, or as appears from the very nature of things, set to affect considerable numbers of persons in general, or of litigants; questions of law that are destined to continually engage the workings of the judicial organs; and questions bearing on the proper conduct of the administration of justice…”

To demonstrate the evolution of what constitutes GPI, recently, in the case of “Town Council of Awendo vs, Nelson Oduor Onyango and 14 others, SC. App. 49 of 2014”, the Court added a further criterion of ascertaining what constitutes a matter of GPI:

“Issues of controversy that emerge from transitional political-economic-social-cum-legal factors with impacts on current rights and entitlements of suitors, or on public access to common utilities and services will merit a place in the category of ‘Matters of General Public Importance’.”

Law evolves based on an evolving society and so do the principles of law applicable in the society. The criteria for ascertaining matters of GPI will no doubt grow as the Court continues to develop different facets of the law as canvassed before it.

Writer is the Deputy Registrar, Supreme Court of Kenya