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Supreme CourtDismissedApplication 14 (E023) of 2022

National Bank of Kenya Limited (As the successor in business of Kenya National Corporation Limited) & another v Criticos

Supreme Court of Kenya
16 June 2023
1,137 words in judgment
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The bottom line

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The Supreme Court refused to hear a bank guarantee dispute, saying it's not a matter of public importance.

What this practically means

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The Supreme Court dismissed an application by Basil Criticos and another against National Bank of Kenya. The applicants wanted the Court to review a Court of Appeal decision that denied them permission to appeal to the Supreme Court. They argued the case raised issues of public importance, like conflicting court decisions on guarantees and bank powers of sale. The Supreme Court disagreed, finding the issues were specific to the parties and not of general public concern. The application was dismissed with costs.

Executive summary

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This was an application by Basil Criticos & another seeking review and setting aside of the Court of Appeal's ruling dated December 16, 2022, which had denied certification under Article 163(4)(b) of the Constitution. In the alternative, the applicants sought an order for certification directly from the Supreme Court. The intended appeal arose from a Court of Appeal judgment dated April 28, 2022 in Civil Appeal No 80 of 2017 concerning a guarantee dispute between the applicants and National Bank of Kenya Limited. The applicants argued that their intended appeal raised matters of general public importance including conflicting Court of Appeal decisions on guarantor discharge upon payment of principal, continuing guarantee clauses, valuation date for statutory power of sale, and the Court of Appeal's residual jurisdiction to stay execution. The respondent opposed the application, contending that no matters of general public importance affecting the banking industry had been raised, and that the issues were either new arguments not pleaded below or specific to the parties. The Supreme Court, applying the settled test from Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone, found that the applicants had not demonstrated that the issues transcended the circumstances of the particular case or had significant bearing on public interest. The Court noted that the Court of Appeal had based its decision on unconscionable contract rather than interpretation of the guarantee document, and that the issue of continuing guarantee clauses was neither pleaded nor determined. Consequently, the Supreme Court dismissed the notice of motion with costs to the respondent.

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 raises matters of general public importance warranting certification under Article 163(4)(b) of the Constitution

Key legal issues

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01

Whether the intended appeal raises matters of general public importance under Article 163(4)(b) of the Constitution

Holding

The application lacks merit as the applicants failed to demonstrate that the issues raised transcend the circumstances of the case or have significant bearing on public interest

Reasoning

The Supreme Court applied the settled test from Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone, requiring that the issue transcend the particular case and have significant public interest bearing. The applicants argued conflicting Court of Appeal decisions on guarantor discharge, continuing guarantee clauses, valuation date for statutory power of sale, and residual jurisdiction to stay execution. However, the Court found these issues either not pleaded below, specific to the parties, or not shown to have broader public impact. The Court of Appeal had based its decision on unconscionable contract, not interpretation of the guarantee document, and the certification application could not be sustained under the Malcolm Bell principles.

Legal principles established

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  • To appeal to the Supreme Court, a case must affect the public broadly, not just the people involved.
  • Issues not raised in lower courts cannot be introduced as matters of public importance on appeal.
  • A dispute about a specific contract, even if important to the parties, is not automatically a public interest case.
  • The Supreme Court will not review a Court of Appeal ruling unless the legal point has wider impact beyond the case.
  • Costs are awarded against a party who fails to show their appeal raises a genuine public concern.

Court orders

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  1. 1.The notice of motion dated December 22, 2022 and filed on December 28, 2022, is hereby dismissed
  2. 2.The costs of this application shall be borne by the applicants

The bench

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

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal
Nairobi Civil Application No E158 of 2022
Jurisdiction invoked
Article 163(4)(b) of the Constitution

Relief refused

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Review and setting aside of the Court of Appeal ruling dated December 16, 2022 denying certification

The applicants have not highlighted any issues, the determination of which, would transcend the circumstances of the matter at hand so as to justify a review of the Court of Appeal's ruling

Alternative order for certification under Article 163(4)(b) of the Constitution

Neither have the applicants raised any substantial question of law, the determination of which, would have a significant bearing on the public interest

Costs

The costs of this application shall be borne by the applicants

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 notice of motion lacks merit as the applicants have not highlighted any issues, the determination of which, would transcend the circumstances of the matter at hand so as to justify a review of the Court of Appeal's ruling
p. 4 General public importance certification
Neither have the applicants raised any substantial question of law, the determination of which, would have a significant bearing on the public interest
p. 4 General public importance certification
The notice of motion dated December 22, 2022 and filed on December 28, 2022, is hereby dismissed
p. 4 Final orders
The costs of this application shall be borne by the applicants
p. 4 Costs order

Key timeline

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2022-04-28
Court of Appeal delivers judgment in Civil Appeal No 80 of 2017 (guarantee dispute).
2022-12-16
Court of Appeal denies certification to appeal to Supreme Court.
2022-12-22
Applicants file application in Supreme Court seeking review of denial.
Date of ruling
Supreme Court dismisses application with costs.

Practical implications

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For lawyers

Tighten certification arguments

When seeking Supreme Court certification under Article 163(4)(b), ensure you clearly link each issue to broad public impact, not just party-specific facts. The Court here rejected arguments about conflicting Court of Appeal decisions because the applicants failed to show those conflicts transcended their own case. Plead the public importance point early and thoroughly in lower courts.

For businesses

Guarantee disputes may end at Court of Appeal

If you are a bank or a guarantor in a contract dispute, this case means many such cases will stop at the Court of Appeal. The Supreme Court is unlikely to hear your case unless it affects the entire banking industry or public at large. Ensure your contract terms are clear and fair to avoid lengthy litigation that may not reach the highest court.

For individuals

Your personal contract case may not reach Supreme Court

If you are involved in a guarantee or loan dispute, do not assume you can appeal to the Supreme Court. The Court will only hear cases that impact the general public, not just your personal situation. Focus on winning your case at the Court of Appeal or earlier, as that may be your final chance.

Frequently asked questions

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How can I appeal to the Supreme Court in Kenya on a matter of public importance?+

You must apply for certification from the Court of Appeal first, showing that your case raises issues that affect the public broadly, not just the parties involved. The Supreme Court may also certify directly in rare cases. Arguments must be made at the earliest stages of the case.

What makes a case a matter of general public importance in Kenya?+

The issue must transcend your specific case and have significant bearing on public interest, such as affecting a large section of society or clarifying an important area of law. Personal contract disputes, even involving banks, usually do not qualify unless they impact the entire banking industry.

What happened in Basil Criticos v National Bank of Kenya Limited?+

The Supreme Court dismissed an application to hear an appeal from a guarantee dispute. The applicants argued conflicting Court of Appeal decisions on guarantor discharge and bank powers of sale. The Court found these issues were specific to the parties and not of general public importance.

Can the Supreme Court in Kenya overturn a Court of Appeal decision on a guarantee case?+

Only if the case is certified as involving a matter of general public importance. The Supreme Court will not review Court of Appeal decisions on routine contract or guarantee disputes unless they raise issues with broad public impact, as confirmed in this case.

Cite this brief

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Cite this brief

Caselaw, "National Bank of Kenya Limited (As the successor in business of Kenya National Corporation Limited) & another v Criticos", Case Analysis (2023). Application 14 (E023) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/60/eng@2023-06-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.