Kafureeka v John Katorobo (Civil Application No. 0153 of 2020)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal granted the applicant a certificate that his intended third appeal to the Supreme Court raises matters of law of great public importance under section 6(2) of the Judicature Act. Applying the Kenyan Steyn principles, the Court held that the questions whether admissions under the Evidence Act are conclusive or operate only as estoppel under section 28, and whether a court may cancel or rectify a certificate of title on fraud raised in a written statement of defence without particulars, a counterclaim or a specific prayer, were substantial points of law transcending the parties' dispute. Questions about the parties' competing land interests and the demarcation of the land were refused as peculiar to the case.

Outcome

Certificate of importance granted; the applicant may pursue a third appeal to the Supreme Court

Facts

The applicant, Vincent Kafureeka, sued the respondent, John Katorobo, in the Chief Magistrate's Court of Mbarara (Civil Suit No. 34 of 1994) for trespass to land in Kabingo Nshenyi, Isingiro District, which he had acquired in 1982. The applicant succeeded. The respondent appealed to the High Court and won; the applicant then appealed to the Court of Appeal, which dismissed the appeal with costs on 20 July 2020. That court found that the respondent's admission was not effective, that the applicant had acquired the land fraudulently, and ordered rectification of the applicant's certificate of title to exclude the respondent's portion. Aggrieved, the applicant filed a notice of appeal to the Supreme Court and brought this application for a certificate that the intended appeal raises matters of law of great public or general importance.

Issues

1. Whether the questions the applicant intends to raise in an intended third appeal to the Supreme Court raise matters of law of great public or general importance warranting a certificate under section 6(2) of the Judicature Act.

Orders

• Application succeeds.
• Certification granted that the questions raised in the application constitute points of law of great public or general importance warranting a third appeal to the Supreme Court.
• The costs of this application shall abide the outcome of the appeal.

Rules and key headnotes

Legislation cited (13)

• Judicature Act s.6(2)
• Judicature (Supreme Court Rules) Directions Rule 39(1)
• Judicature (Court of Appeal Rules) Directions Rule 43
• Evidence Act s.16
• Evidence Act s.17(1)
• Evidence Act s.28
• Civil Procedure Rules Order 8 Rule 6
• Civil Procedure Rules Order 15 Rule 5(1)
• Civil Procedure Rules Order 13 Rule 28
• Civil Procedure Rules Order 6 Rule 3
• Land Reform Decree No. 3 of 1978 s.3(2)
• Registration of Titles Act s.176(c)
• Constitution of Kenya Article 163(4)(b)

Cases cited (10)

• Kampala Bottlers Ltd v Damanico (U) Ltd (Civil Appeal No. 22 of 1992)
• Horizon Coaches Ltd v Edward Rurangaranga & Another (Civil Appeal No. 14 of 2009)
• Lazarus Estate Ltd v Beasley [1956] QB 702
• Hon. Mukasa Fred Mbidde & Anor v The Law Development Centre, Civil Appeal No. 51 of 2018
• Makula International Ltd v His Eminence Cardinal Nsubuga [1982] HCB 12
• Environmental Action Network Ltd v Joseph Eryau (Civil Application No. 98 of 2008)
• Hermanus Phillippus Steyn v Giovanni Gnecchi-Ruscone (Civil Application No. 4 of 2012) (Supreme Court of Kenya)
• Sinba (K) Ltd and 4 Others v Uganda Broadcasting Corporation (Civil Appeal No. 3 of 2014)
• American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504
• Charles Lwanga Masengere v God Kabagambe & 2 Others (Civil Application No. 125 of 2009)

The original judgment as reported. Read the original PDF before relying on any passage.