Samaki Industries (K) Ltd v Kenya Ports Authority (Civil Application E093 of 2024) [2025] KECA 1870 (KLR)
The bottom line
#The Court of Appeal refused Samaki Industries permission to take its case to the Supreme Court because the legal question raised was never argued in the lower courts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal to the Supreme Court raises a matter of general public importance warranting certification and leave pursuant to Article 163(4) of the Constitution
Key legal issues
#Whether the intended appeal raises a matter of general public importance under Article 163(4)
The application fails: the sole question of law (whether a trial court may grant a counterclaim unsupported by a verifying affidavit) was never pleaded or raised in the trial court, so it was not judicially determined below and cannot ground certification; the remaining grievances are factual and party-specific.
Applying the Steyn v Ruscone criteria, the applicant had to show an issue transcending the parties' dispute with a significant bearing on public interest. Both the ELC and this Court found the verifying-affidavit objection was not raised in the pleadings at trial and could not be introduced on appeal. There were therefore no contradictory precedents creating a state of uncertainty, and the applicant's other complaints arise from facts and evidence in its own case, which cannot transcend the dispute between the parties.
Legal principles established
#- A question of law that was not pleaded, raised or determined in the courts below cannot be certified as a matter of general public importance for appeal to the Supreme Court.
- An applicant for certification bears the burden of demonstrating specific elements of real public interest transcending the parties' litigation interests.
- Determination of factual contests between parties is not, by itself, a basis for certification of an appeal to the Supreme Court.
Court orders
#- 1.The application dated 26th July 2024 is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya, Mombasa
- Mombasa Civil Appeal No. E104 of 2021
- Jurisdiction invoked
- Article 163(4) of the Constitution - leave and certification of a matter of general public importance for appeal to the Supreme Court
Relief refused
#Leave to appeal to the Supreme Court and certification that the intended appeal involves matters of general public importance
The question of law sought to be certified was not raised or pleaded in the trial court and could not be raised on appeal; no contradictory decisions creating a state of uncertainty were shown; remaining grievances are factual and party-specific
Costs
The application dated 26th July 2024 is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The application dated 26th July 2024 is accordingly found not to have merit and is hereby dismissed with costs to the respondent.
It is so ordered.
its impacts and consequences are substantial, broad-based, transcending the litigation-interests of the parties, and bearing upon the public interest
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
Issues in the judgment
#The ruling repeatedly renders 'affidavit' as 'afidavit' and 'suffer' as 'sufier', and renders 'conflicting' as 'confiicting' - apparent typographical/OCR errors in the provided text.
The respondent is never named in the ruling; it is identified only through its Senior Legal Officer, Lillian M. Kamau.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samaki Industries (K) Ltd v Kenya Ports Authority (Civil Application E093 of 2024) [2025] KECA 1870 (KLR)", Case Analysis (2025). Mombasa Civil Application (from Mombasa Civil Appeal No. E104 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1870/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.