National Bank of Kenya Limited (As the successor in business of Kenya National Corporation Limited) & another v Criticos
The bottom line
#The Supreme Court refused to hear a bank guarantee dispute, saying it's not a matter of public importance.
What this practically means
#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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal raises matters of general public importance warranting certification under Article 163(4)(b) of the Constitution
Key legal issues
#Whether the intended appeal raises matters of general public importance under Article 163(4)(b) of the Constitution
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
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
#- 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
#- 1.The notice of motion dated December 22, 2022 and filed on December 28, 2022, is hereby dismissed
- 2.The costs of this application shall be borne by the applicants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Nairobi Civil Application No E158 of 2022
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution
Relief refused
#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
#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
Neither have the applicants raised any substantial question of law, the determination of which, would have a significant bearing on the public interest
The notice of motion dated December 22, 2022 and filed on December 28, 2022, is hereby dismissed
The costs of this application shall be borne by the applicants
Key timeline
#Practical implications
#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.
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.
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
#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
#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.