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Court of AppealDismissedMombasa Civil Application (from Mombasa Civil Appeal No. E104 of 2021)

Samaki Industries (K) Ltd v Kenya Ports Authority (Civil Application E093 of 2024) [2025] KECA 1870 (KLR)

Court of Appeal of Kenya
7 November 2025
2,022 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Nyamweya, Laibuta and Ngenye-Macharia, JJ.A.) on an application dated 26th July 2024 by Samaki Industries (K) Ltd seeking leave to appeal to the Supreme Court and certification that its intended appeal involves matters of general public importance, arising from the dismissal of its appeal in Mombasa Civil Appeal No. E104 of 2021 (Gatembu, Murgor & Laibuta, JJ.A., 12th July 2024). The applicant's sole proposed question of law was whether a trial court has mandate to grant a counterclaim not supported by a verifying affidavit, under Order 7 Rule 5(a) of the Civil Procedure Rules, 2010. It alleged a 'state of uncertainty' from conflicting decisions of the trial court, the ELC and the Court of Appeal. The respondent opposed, pointing out that the issue was never pleaded at trial and no contradictory decisions were cited. Applying the Supreme Court's criteria in Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone, the Court held that the question was never raised or judicially determined in the courts below and therefore could not be certified; no contradictory precedents existed; and the applicant's other grievances were factual and confined to the parties' dispute. The application was dismissed with costs to the respondent on 7th November 2025. The decision below was not disturbed; the ruling concerns certification only.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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

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01

Whether the intended appeal raises a matter of general public importance under Article 163(4)

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application dated 26th July 2024 is dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
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

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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

p. 4

Costs

The application dated 26th July 2024 is dismissed with costs to the respondent.

Quotable passages

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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.
p. 4Disposition - application for certification and leave dismissed
It is so ordered.
p. 4Final orders
its impacts and consequences are substantial, broad-based, transcending the litigation-interests of the parties, and bearing upon the public interest
p. 3Test for a matter of general public importance
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
p. 3Certification principles

Issues in the judgment

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minor

The ruling repeatedly renders 'affidavit' as 'afidavit' and 'suffer' as 'sufier', and renders 'conflicting' as 'confiicting' - apparent typographical/OCR errors in the provided text.

minor

The respondent is never named in the ruling; it is identified only through its Senior Legal Officer, Lillian M. Kamau.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.