Sanitam Services (E.A) Limited v Nyaga & another (Civil Application 89 of 2021) [2023] KECA 386 (KLR)

The respondents argued the application was filed outside the 14-day window in Rule 40(b). The court read Rule 2 of the Rules and found Rule 40 applies only to certification from the High Court to the Court of Appeal, not to certification to the Supreme Court under Article 163(4)(b). No time-limit exists for such applications; the delay of one month and 12 days was not inordinate under Article 259(8).

Applying the Steyn principles, the court found the applicant failed to show that the question of third party evidence in defamation transcends the particular case or bears significantly on public interest. The ingredients of defamation are well settled, no lacuna or contradictory precedent was demonstrated, and factual disputes between commercial competitors cannot found certification. The applicant's claim that the impugned decision would repeal Evidence Act provisions was an impermissible interpretation of a judgment that speaks for itself.

The applicant argued that if the impugned decision stood, provisions of the Evidence Act on presumption and admissions would be repealed. The court rejected this, holding that the decision below was based solely on the facts and law, and a party cannot manufacture public importance by attributing sweeping constitutional implications to a judgment. This contention did not demonstrate a substantial point of law with a significant bearing on the public interest.