Nyamwange & another v Kiiru & 10 others (Application E011 of 2025) [2025] KESC 61 (KLR) (17 October 2025) (Ruling)

Nyamwange & another v Kiiru & 10 others (Application E011 of 2025) [2025] KESC 61 (KLR) (17 October 2025) (Ruling) Neutral citation: [2025] KESC 61 (KLR) Republic of Kenya In the Supreme Court of Kenya Application E011 of 2025 PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ October 17, 2025 Between Richard Nyamwange 1st Applicant Monica nyamwange 2nd Applicant and Samuel Kimani Kiiru 1st Respondent Daniel gathemba Kiiru 2nd Respondent Kimani kahiro t/a Kimani Kahiro & Co Advocates 3rd Respondent Chege Wainaina t/a Chege Wainaina & Co Advocates 4th Respondent Peter Mungai 5th Respondent Vema Agencies Limited 6th Respondent Livingstone Gitonga Muchungi 7th Respondent James Musau Kimeu 8th Respondent Charles Kamari 9th Respondent Joreth Limited 10th Respondent The Registrar of Titles and Commissioner of Land 11th Respondent (Being an application for review of the ruling of the Court of Appeal (Musinga (P), Mumbi Ngugi, Odunga JJ.A.) in Civil Application No. Nai E303 of 2024 dated 11th April, 2025 dismissing the applicants’ application for grant of certification and leave to appeal to the Supreme Court) Mere apprehension of miscarriage of justice is not a proper basis for granting certification for an appeal to the Supreme Court _The applicants filed a suit in the trial court alleging fraud and breach of a sale agreement. The trial court held that the respondents lacked transferable proprietary interest since the previous seller had not acquired legal title, found no fraud in the subsequent transfer, and rejected the adverse possession claim as it was not pleaded. The Court of Appeal upheld those findings. On review, the Supreme Court declined certification of the appeal as a matter of general public importance. The court held that an allegation of fraud was a factual issue, and was specific to the circumstances prevailing between the parties and was therefore a private dispute that did not transcend the parties. The court further held that mere apprehension of miscarriage of justice was not a proper basis for granting certification for an appeal to the court._ Reported by Kakai Toili **_Civil Practice and Procedure_** _– appeals – appeals to the Supreme Court – appeals in matters of general public importance - whether an allegation of fraud in a land transaction transcended the parties and thus appealable to the Supreme Court as a matter of general public importance - whether mere apprehension of miscarriage of justice was a proper basis for granting certification for an appeal to the Supreme Court – Constitution of Kenya, article 163(4)(b)._ Brief facts The applicants instituted a suit at the Environment and Land Court (trial court) founded on allegations of fraud and breach of a sale agreement dated July 1989. The applicants averred that they entered into an agreement for the sale of the suit property with the 1st and 2nd respondents, who had previously purchased the suit property from Thome Farmers No.5 Limited (Thome Farmers) with the approval of the 10th respondent. The applicants sought for among other orders: a permanent and mandatory injunction against the respondents; specific performance of the agreement; and an injunction against the respondents restraining them from interfering with quiet possession of the suit property. The 7th \- 9th respondents filed a defence and counterclaim seeking an order to compel the applicants to vacate the suit property.The trial court established _inter alia_ that the 1st and 2nd respondents’ beneficial interest in the property was conditional upon Thome Farmers obtaining a legal title to the property from the 10th respondent. It also noted that the agreement for sale between Thome Farmers and the 10th respondent was not completed, as Thome Farmers failed to pay the full purchase price. It therefore held that neither the 1st and 2nd respondents, nor Thome Farmers had a valid proprietary interest in the suit property capable of being transferred to the applicants. The court further held that the applicants did not prove that the transfer of the suit property by the 10th respondent to the 7th, 8th and 9th respondents was fraudulent or un-procedural. Concerning adverse possession, the trial court found that the applicants did not plead adverse possession and that the issue only arose at the point of submissions and consequently, they were not entitled to a relief in that respect. Aggrieved, the applicants appealed to the Court of Appeal which upheld the trial court’s findings. Further aggrieved, the applicants sought certification and leave to appeal to the Supreme Court on grounds that the matter raised issues of general public importance, including the interpretation of section 3(3) of the Law of Contract Act and the doctrine of adverse possession. The Court of Appeal declined certification, prompting the instant application for review. Issues 1. Whether mere apprehension of miscarriage of justice was a proper basis for granting certification for an appeal to the Supreme Court.**** 2. Whether an allegation of fraud in a land transaction transcended the parties and thus appealable to the Supreme Court as a matter of general public importance.**** Held 1. An intending appellant had an obligation to identify and concisely set out the specific elements of general public importance which he or she attributed to the matter for which certification was sought. Further, it was for the intending appellant to demonstrate that the point of law to be raised was a substantial one whose determination had a significant bearing on the public interest. 2. The applicants asserted that the 7th \- 9th respondents did not produce a sale agreement in compliance with section 3(3) of the Law of Contract Act, and that their title was fraudulently acquired. An allegation of fraud was a factual issue, and was specific to the circumstances prevailing between the parties to the dispute. The superior courts below determined the issue based on the contested facts between the parties. That was therefore a private dispute that did not transcend the parties. Moreover, the applicants had not presented to the court contradictory decisions by the superior courts below on the interpretation of section 3(3) of the Law of Contract Act to warrant the court’s further input. 3. The courts below disallowed the claim on adverse possession as it was not pleaded in the applicants’ amended plaint. The determination by the trial court was on the question of whether the applicants had beneficial interest on the suit property. The question on whether parties were bound by their pleadings was settled law. 4. A decision of the court was intended to settle a substantial question of law, and it could only depart from it after a sufficient ground had been established. Moreover, the applicants had not presented any ambiguities or uncertainties in the law to warrant the exercise of the court’s jurisdiction under article 163(4)(b) of the Constitution. Mere apprehension of miscarriage of justice, a matter most apt for resolution, at earlier levels of the superior courts below, was not a proper basis for granting certification for an appeal to the court. 5. The matter to be certified for a final appeal in the Supreme Court, must fall within the terms of article 163(4)(b) of the Constitution. None of the issues framed by the applicants had met the threshold for certification. The Court of Appeal aptly applied itself to the application and the parameters for certification and correctly declined to certify the matter. In the absence of certification, the prayer relating to injunction fell. _Application dismissed._ Orders 1. _Each party to bear its own costs._ Citations **Cases**** _Kenya_** 1. _Bell v Moi & another_ Application 1 of 2013; [2013] KESC 23 (KLR) 2. _GK Macharia & another v Mungai_ Civil Appeal 85 of 1990; [1995] KECA 165 (KLR) - (Mentioned) 3. _Koinange Investment & Development Ltd v Robert Nelson Ngethe_ Civil Application 15 of 2012; [2013] KECA 380 (KLR) - (Mentioned) 4. _Noordin v Karisa_ Civil Appeal 26 of 2015; [2015] KECA 188 (KLR) - (Mentioned) 5. _Rai & 3 others v Rai & 4 others_ Petition 4 of 2012; [2014] KESC 31 (KLR) - (Followed) 6. _Steyn v Ruscone_ Application 4 of 2012; [2013] KESC 11 (KLR) - (Mentioned) 7. _Wanjohi v Mukabi_ Civil Appeal 144 of 2017; [2021] KECA 476 (KLR) - (Mentioned) **Statutes** 1. Constitution of Kenya, articles 40,163(5);163(4)(b) — Interpreted 2. Law of Contract Act (cap 23) section 3(3) — Interpreted 3. Supreme Court Act (cap 9B) section 15B — Interpreted 4. Supreme Court Rules 2020 (cap 9B Sub Leg) — rule 33(1) - (Interpreted) Advocates _Ms Wanjiku Waithera h/b for Mr Shadrack Wambui_ for applicants _Issa & Company Advocates_ for the 7th, 8th & 9th respondents Ms Magdalene Njueini for the 10th respondent Ruling Representation:Ms Wanjiku Waithera h/b for Mr Shadrack Wambui for the Applicants(Musyoki Mogaka and Co Advocates)Issa & Company Advocates for the 7th, 8th & 9th respondents Ms Magdalene Njueini for the 10th respondent(Nyiha, Mukoma & Company Advocates)No appearance for the 1st \- 6th & 11th respondents 1.Upon perusing the notice of motion dated April 15, 2025 and filed on April 25, 2025 pursuant to article 163(5) of the Constitution, section 15B of the [Supreme Court Act](/akn/ke/act/ln/2020/101/eng@2025-08-20) and rule 33(1) of the [Supreme Court Rules 2020](/akn/ke/act/ln/2020/101/eng@2025-08-20), seeking a review of the Court of Appeal’s ruling declining to grant certification of the intended appeal as raising substantial points of law and matters of general public importance; and an order of temporary injunction against the respondents from evicting the applicants or in any manner dealing with the property known as LR No 13330/142 (suit property) pending the hearing and determination of the intended appeal; and 2.Upon perusing the applicant’s grounds on the face of the application, and the supporting affidavit of the 1st applicant sworn on April 15, 2025 on his own behalf and on behalf of the 2nd applicant, contending that its intended appeal raises matters of general public importance as the decision of the Court of Appeal:a.has created bad law whose effect is contradictory and a departure to the provisions of sections 3(3) of the [Law of Contract Act](/akn/ke/act/1960/43) by finding that the 7th, 8th and 9th respondents were entitled to the orders in the counterclaim and effectively agreeing with the trial court that their production of a copy of the instrument of transfer was equivalent to a contract of sale;b.unless the judgment is reviewed, it will entrench the wrong application and understanding of Section 3(3) of the [Law of Contract Act](/akn/ke/act/1960/43) and the fundamental distinction between a contract of sale and transfer documents in conveyancing transactions;c.in effect, has created a perilous precedent that permits the unjust enrichment of fraudulent registration or acquisition;d.created a perilous precedent that permits the unjust enrichment of fraudulent vendors by allowing the 7th, 8th & 9th respondents’ counterclaim while still being aware that the 3rd respondent has previously received adequate consideration from the applicants on behalf of the 10th respondent in compliance with the consent order in HCCC No 6206 of 1992.e.consciously guarantees the 10th respondent judicial immunity from its fraudulent dealings that resulted to the issuance of a title deed in favour of the 7th, 8th & 9th respondents against public policy and the need to guard against instances of unjust enrichment;f.created a conflicting and contradictory position in the area of understanding the plain meaning of the legal term ‘adverse possession’ by finding that despite the applicants’ clear indication in their amended plaint that they had taken possession of the subject property in the year 1989 and lived for a continuous period of over 15 years, they had not pleaded adverse possession to entitle them to a right over the subject property;g.created bad law in direct conflict and contradiction with settled law by other courts of concurrent jurisdiction that the claim of adverse possession, a legal term of art, can be adequately pleaded in a plaint other than originating summons and effectively addressed;h.created bad law in contradiction with settled precedence from this Court that a court can and should, address and determine issues that arise in the course of trial that are relevant to the dispute though unpleaded;i.created bad law that fails to take account of the development of law by failing to appreciate that the circumstances of this case permitted the applicants to contemporaneously seek enforcement of their contractual rights as against the 1st and 2nd respondents and their right to adverse possession as against the 7th, 8th, 9th & 10th respondents; andj.unfairly deprives the applicants their right to property under article 40 of the Constitution over land known as LR No 13330/142 and consequently puts them at risk of eviction and their many yearlong investments at peril of destruction; and 3.Upon considering the applicants’ submissions dated April 15, 2025and filed on even date where it is submitted that: they challenge the registration of the suit property in favour of the 7th, 8th and 9th respondents on the basis of fraud; that the 7th, 8th and 9th respondents did not have, nor did they produce a Sale Agreement in compliance with section 3(3) of the [Law of Contract Act](/akn/ke/act/1960/43); and the determination of the courts below created contradictory interpretations of section 3(3) of the [Law of Contract](/akn/ke/act/1960/43) by finding that the production of instruments of transfer is equivalent to a contract of sale. The applicants aver that the 10th respondent received a settlement fee of Kshs 200,000 from the applicants in compliance with a consent order issued in HCC No 6202 of 1992, and subsequently received a further consideration from the 7th, 8th and 9th respondents and therefore their rights over the subject property came first and ranked superior; and 4.Further considering the applicants’ contention that: their uninterrupted possession of the suit property for 15 years was expressly raised in their amended plaint, sustaining a claim of adverse possession as against the 10th respondent or the 7th, 8th and 9th respondents; that assuming the same was not pleaded, they cite the Court of Appeal decisions in [Ann Wairimu Wanjohi v James Wambiru Mukabi](/akn/ke/judgment/keca/1995/165) [2021] eKLR; [GK Macharia & anor v Lucy N Mungai](/akn/ke/judgment/keca/1995/165) [1995] eKLR and [Gulam Miriam Noordin v Julius Charo Karisa](/akn/ke/judgment/keca/2015/188) [2015] eKLR to urge that, where a plaint makes no specific plea of adverse possession, the plea can nonetheless be granted; and 5.Upon reading the applicants’ further averments that: there exists contradicting jurisprudence from the Court of Appeal that would warrant an intervention from this Court; the determination of the matter before the superior courts has resulted in interpretation and implementation of the law in a manner that now transcends the circumstances of the parties; it has a significant bearing on public interest; if the decision of the superior court is not disturbed, it will negatively influence the practice of conveyancing in Kenya; and that the Court of Appeal ruling of April 11, 2025was made in error and is therefore amenable to review pursuant to article 163(5) of the [Constitution](/akn/ke/act/2010/constitution); and 6.Upon reading the 7th, 8th and 9th respondents’ replying affidavit sworn on May 13, 2025 and filed on May 15, 2025 by the 8th respondent, James Musau Kimeu on his own behalf and behalf of the 7th and 9th respondents where, in opposition to the application, he avers that: the 7th, 8th and 9th respondents are the registered owners of the suit property having purchased it from the 10th respondent; there was no evidence that the 10th respondent, who was the vendor and former registered owner of the suit property, entered into any agreement for sale of the suit property to the applicants; and that the issues raised in the application do not flow from the pleadings, and were not a subject for determination in the superior courts below; and 7.Further considering the 7th, 8th and 9th respondents’ averments that: the applicants have not concisely set out the provisions of the law which would require input from this court; the claim for adverse possession did not arise at all during the course of trial; the Court of Appeal upheld previous decisions of the court in holding that adverse possession has to be pleaded; and that the dispute before the superior courts below was determined on the basis of two rival positions. They additionally contend that they have been denied the right to enjoy their proprietary rights for over 10 years due to the pendency of the litigation; and that it is in the interest of justice that the court declines the invitation to certify the matter as it is without merit and dismiss it with costs; and 8.Taking into account the 7th, 8th and 9th respondents’ submissions dated May 13, 2025 and filed on 15th May, 2025 where they submit that: the applicants have not met the criteria established by this Court in the [Hermanus Phillipus Steyn v Giovanni- Ruscone](/akn/ke/judgment/kesc/2013/23) (Application 4 of 2012) [2013] KESC 11 (KLR) (Hermanus case); the Court does not have jurisdiction to consider any new issues beyond what was considered by the Court of Appeal in the initial application for certification; the applicants have not demonstrated any conflicting decisions of the Court of Appeal requiring this court’s input; the appellate court’s decision was in line with settled law; and that none of the issues raised transcend the interests of the parties herein, citing this Court’s decisions in [Malcolm Bell v Moi & another](/akn/ke/judgment/kesc/2013/23) (Application 1 of 2013) [2013] KESC 23 (KLR) (Malcolm Bell case); and 9.Upon reading the 10th respondent’s replying affidavit of Dr Jonathan Ciano, its Manager, sworn on May 21, 2025 and submissions dated May 21, 2025 both filed on May 22, 2025 wherein it is urged that: the dispute arose from the ownership, sale and transfer of the suit property; the applicants are merely seeking leave to further appeal the decision of the Court of Appeal while disguising the same as matters of general public importance; the appellate court’s judgment was decisive as to the ownership of the suit property and should therefore bring the present suit to a close; the grounds set out in the application at paragraph 4(a)–(j) do not disclose any matters of fact or law that transcend the parties to the case; and that it is a veiled attempt by the applicants to file a further appeal of the present case to this Court; and 10.Taking into account the 10th respondent’s averments that: the applicants are inviting the court to interpret the doctrine of adverse possession and its application in the present suit; the law on adverse possession is a well settled principle of law; adverse possession must be stated explicitly and directly, and that a claim for adverse possession cannot co-exist with one of purchase of land; and that it is settled that parties are bound by their pleadings. To buttress its arguments the 10th respondent cites the Malcolm Bell case and the Court of Appeal decision in [Koinange Investment & Development Ltd v Robert Nelson Ngethe](/akn/ke/judgment/keca/2013/380), Civil Appl No Sup 15 of 2012 (UR9/2012) urging that the application ought to be dismissed with costs; and 11.Noting that the 1st -6th and 11th respondents, despite service of the application neither filed a response, submissions nor participated in these proceedings; and 12.Bearing in mind the provisions of article 163(4)(b) and (5) of the Constitution, section 15B of the [Supreme Court Act](/akn/ke/act/ln/2020/101/eng@2025-08-20) and rule 33 of the [Supreme Court Rules 2020](/akn/ke/act/ln/2020/101/eng@2025-08-20) and this Court’s guiding principles on grant of certification and leave to appeal to the Supreme Court as set out in the [Hermanus Case](/akn/ke/judgment/kesc/2013/11); and 13.Having Considered the application, responses and submissions filed by the parties, we now opine as follows:i.The genesis and the gravamen of the dispute is the ownership of LR No 13330/142, the suit property. The applicants instituted the suit vide an amended plaint dated 24th October, 2012 founded on allegations of fraud and breach of a sale agreement dated July 1989. The applicants averred that they entered into an agreement for the sale of the suit property with the 1st and 2nd respondents, who had previously purchased the suit property from Thome Farmers No 5 Limited (Thome) with the approval of the 10th respondent. They sought the following orders: a permanent and mandatory injunction against the respondents; specific performance of the agreement dated July 1989; an injunction against the respondents to restrain them from interfering with quiet possession of the suit property; cancellation of the certificate of title to the suit property in the names of the 7th \- 9th respondents; damages and costs. The 7th \- 9th respondents on their part filed a defence and counterclaim seeking an order to compel the applicants to vacate the suit property.ii.In the judgment dated May 5, 2020the Environment and Land Court established inter alia that the 1st and 2nd respondents’ beneficial interest in the property was conditional upon Thome obtaining a legal title to the property from the 10th respondent. It also noted that the agreement for sale between Thome and the 10th respondent was not completed, as Thome failed to pay the full purchase price. It therefore held that neither the 1st and 2nd respondents, nor Thome Farmers No. 5 Limited had a valid proprietary interest in the suit property capable of being transferred to the applicants. The court further held that the applicants did not prove that the transfer of the suit property by the 10th respondent to the 7th, 8th and 9th respondents was fraudulent or un-procedural. Concerning adverse possession, the trial court found that the applicants did not plead adverse possession in their amended plaint, or as a defence to the 7th, 8th and 9th respondents’ counter-claim. That the issue only arose at the point of submissions and consequently, it determined that they were not entitled to a relief in that respect. In the judgment dated June 7, 2024 the Court of Appeal upheld the trial court’s findings.iii.This Court has in several of its decisions determined that an intending appellant 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. Further, it is for the intending appellant to demonstrate that the point of law to be raised is a substantial one whose determination has a significant bearing on the public interest. From the application and submissions, we note that the appellant takes issue with the Court of Appeal’s finding on the allegations of fraud; section 3(3) of the [Law of Contract Act](/akn/ke/act/1960/43); and the determination on adverse possession.iv.The applicants assert that the 7th \- 9th respondents did not produce a sale agreement in compliance with section 3(3) of the [Law of Contract Act](/akn/ke/act/1960/43), and that their title was fraudulently acquired. An allegation of fraud is a factual issue, and is specific to the circumstances prevailing between the parties to the dispute. The superior courts below determined the issue based on the contested facts between the parties. This is therefore a private dispute that does not transcend the parties. Moreover, the applicants have not presented to this Court contradictory decisions by the superior courts below on the interpretation of section 3(3) of the [Law of Contract Act](/akn/ke/act/1960/43) to warrant this Court’s further input.v.On adverse possession, the applicants seek to have this Court determine, “whether the reference in their amended plaint to having lived on the suit property for a continuous and uninterrupted period of 15 years gave them a right to adverse possession against its registered owner, the 10th respondent” and “whether a court can and should, address and determine issues that arise in the course of trial that are relevant to the dispute though unpleaded.” We note that the courts below disallowed the claim on adverse possession as it was not pleaded in the applicants’ amended plaint. The determination by the trial court was on the question of whether the applicants had beneficial interest on the suit property.vi.The question on whether parties are bound by their pleadings is settled law. We emphasize that a decision of this court is intended to settle a substantial question of law, and it can only depart from it after a sufficient ground has been established. Moreover, the applicants have not presented any ambiguities or uncertainties in the law to warrant the exercise of this Court’s jurisdiction under article 163(4)(b) of the [Constitution](/akn/ke/act/2010/constitution). As was held in the Hermanus case, mere apprehension of miscarriage of justice, a matter most apt for resolution, at earlier levels of the superior courts below, is not a proper basis for granting certification for an appeal to the Supreme Court.vii.In the end, the matter to be certified for a final appeal in the Supreme Court, must fall within the terms of article 163(4)(b) of the [Constitution](/akn/ke/act/2010/constitution). None of the issues framed by the applicants have met the threshold for certification. We are satisfied that the Court of Appeal aptly applied itself to the application and the parameters for certification and correctly declined to certify the matter.viii.In the absence of certification, the prayer relating to injunction falls and we say no more on it.ix.On the question of costs, this Court in J[asbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others](/akn/ke/judgment/kesc/2014/31), (Petition 4 of 2012) [2014] KESC 31 (KLR) set the guiding principles on the award of costs. The award of costs is discretionary. Noting that this matter did not proceed to hearing of the appeal on the merits, each party shall therefore bear their own costs. 14.Consequently, for reasons aforesaid, we make the following orders:i.The notice of motion dated April 15, 2025 and filed on April 25, 2025be and is hereby dismissed; andii.Each party to bear its own costs.Orders accordingly. **DATED AND DELIVERED AT NAIROBI THIS 17 TH DAY OF OCTOBER, 2025.****.......................................****P. M. MWILU****DEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT****.......................................****M. K. IBRAHIM****JUSTICE OF THE SUPREME COURT****.......................................****S.C. WANJALA****JUSTICE OF THE SUPREME COURT****.......................................****NJOKI NDUNGU****JUSTICE OF THE SUPREME COURT****.......................................****I. LENAOLA****JUSTICE OF THE SUPREME COURT** I certify that this is a true copy of the original**REGISTRAR,****SUPREME COURT OF KENYA** *[eKLR]: electronic Kenya Law Reports *[KESC]: Kenya supreme Court *[KLR]: Kenya Law Reports *[LR]: Land Reference