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Supreme CourtDismissedCivil Application E016 of 2023

Sanitam Services (EA) Limited v Nyaga & another

Supreme Court of Kenya
22 September 2023
1,471 words in judgment
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The bottom line

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Supreme Court refused to hear defamation appeal because issues were not of general public importance.

What this practically means

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Sanitam Services wanted to appeal a defamation case to the Supreme Court, arguing it involved important constitutional rights. But the Supreme Court said the questions were specific to the parties, not broad legal issues affecting everyone. It also said claims that the Court of Appeal violated the Constitution cannot be appealed under that rule. The application was dismissed.

Executive summary

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This was an originating motion by Sanitam Services Limited seeking review of a Court of Appeal ruling that declined to certify its intended appeal as one of general public importance under Article 163(4)(b) of the Constitution. The applicant argued that the Court of Appeal had erroneously introduced an additional ingredient to the tort of defamation—requiring third-party evidence to prove injury to reputation—which it claimed violated its constitutional rights to a fair trial and dignity under Articles 25(c) and 28. The Supreme Court, in a unanimous judgment delivered by Chief Justice Koome, dismissed the application. The Court held that the five questions posed by the applicant were factual issues specific to the parties' circumstances and did not transcend the dispute to become matters of general public importance. It further found that the applicant had not demonstrated any contradiction or uncertainty in the law of defamation requiring settlement by the Supreme Court. The Court also stated that alleged violations of constitutional provisions by the Court of Appeal are not subject to its jurisdiction under Article 163(4)(b). The Court affirmed the Court of Appeal's decision and ordered each party to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the application meets the test for certification as raising matters of general public importance under article 163(4)(b) of the Constitution.

Key legal issues

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01

Whether the applicant's proposed issues raise matters of general public importance under article 163(4)(b) of the Constitution.

Holding

The proposed issues are factual and specific to the parties' dispute, not matters of general public importance.

Reasoning

The court examined the five questions posed by the applicant, which centered on whether third-party evidence is a prerequisite in defamation and whether constitutional rights were violated. It found these to be factual issues arising from the specific circumstances of the case, not broad legal questions transcending the parties' dispute. The court also noted that the applicant failed to demonstrate any contradiction or uncertainty in the law of defamation that would require settlement by the Supreme Court.

02

Whether the Court of Appeal correctly applied the threshold for certification under article 163(4)(b).

Holding

The Court of Appeal correctly applied the threshold set by the Supreme Court in Hermanus Phillipus Steyn.

Reasoning

The Supreme Court reviewed the impugned Court of Appeal ruling and was satisfied that the appellate court properly interrogated the applicant's proposed issues under the established threshold. The court affirmed the Court of Appeal's decision to decline certification.

Legal principles established

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  • A mere fear of unfair outcome is not enough to get Supreme Court certification under Article 163(4)(b).
  • Alleged constitutional violations by the Court of Appeal are not reviewable by the Supreme Court under that article.
  • To be of general public importance, an issue must go beyond the specific dispute and affect many people.
  • The Court of Appeal correctly applied the strict test for certification set in the Hermanus Phillipus Steyn case.
  • An applicant must show a real contradiction or uncertainty in the law, not just argue the lower court was wrong.

Court orders

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  1. 1.The originating motion dated April 13, 2023 and filed on May 25, 2023 be and is hereby dismissed.
  2. 2.Each party to bear own costs.

The bench

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

Martha Karambu Koome
M.K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal
Civil Application No E089 of 2021
Jurisdiction invoked
Article 163(4)(b) of the Constitution

Relief refused

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Review/setting aside of the Court of Appeal ruling of March 31, 2023

The application did not meet the threshold for certification under article 163(4)(b).

Certification of the matter as fit for determination by the Supreme Court

The issues raised were factual and specific to the parties, not of general public importance.

Leave to appeal to the Supreme Court

The application was dismissed for failing to meet the general public importance threshold.

Costs

Each party to bear own costs.

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.

a mere apprehension of a miscarriage of justice, is a matter most apt for resolution in the superior courts below, and is not a proper basis for granting certification for an appeal to the Supreme Court
p. 5 Certification for appeal

Key timeline

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2023-04-13
Originating motion dated, seeking Supreme Court review of Court of Appeal certification denial.
2023-05-25
Originating motion filed in the Supreme Court.
2023
Supreme Court delivered judgment dismissing the motion.

Practical implications

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For lawyers

Certification threshold is high

When seeking to appeal to the Supreme Court under Article 163(4)(b), you must frame your issues as matters of general public importance that transcend the parties. Simply alleging constitutional violations by the Court of Appeal will not suffice. The Court will scrutinise whether the proposed issues raise broad legal questions needing settlement, not just factual disputes.

For businesses

Defamation cases stay in lower courts

If your business is involved in a defamation dispute, expect the case to be resolved in the High Court and Court of Appeal. The Supreme Court will only step in if the legal question affects many businesses or the public generally. This ruling confirms that disputes about evidence or reputation are usually treated as case-specific, not matters of general public importance.

For individuals

Constitutional claims not a shortcut

Individuals hoping to elevate a personal defamation case to the Supreme Court by adding constitutional arguments should be cautious. The Supreme Court made clear that alleging a violation of your rights by the Court of Appeal does not automatically give you a right to appeal. You must show the case raises a truly broad legal issue that needs the Supreme Court's guidance.

Frequently asked questions

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What does 'general public importance' mean for Kenyan Supreme Court appeals?+

It means the legal issue must affect many people beyond the specific parties, not just a factual dispute. The Supreme Court in this case said issues about defamation evidence and constitutional violations were too specific to the parties and not of general public importance.

Can I appeal a defamation case to the Kenyan Supreme Court?+

Only if the case raises a matter of general public importance, not just a disagreement with the Court of Appeal's decision. This case shows that even claims of constitutional violations by the lower court will not qualify unless the issue is a broad legal question needing settlement.

What is the process to get certification to appeal to the Supreme Court in Kenya?+

You must first apply to the Court of Appeal for certification that your intended appeal involves a matter of general public importance under Article 163(4)(b). If refused, you can apply directly to the Supreme Court for review. This case shows the Supreme Court will uphold the Court of Appeal's decision if it correctly applied the strict test.

Why was Sanitam Services' appeal to the Kenyan Supreme Court dismissed?+

The Supreme Court found the five legal questions Sanitam raised were factual issues specific to the defamation case, not broad legal questions affecting the public. It also said claims that the Court of Appeal violated constitutional rights are not within the Supreme Court's jurisdiction under that appeal route.

Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sanitam Services (EA) Limited v Nyaga & another", Case Analysis (2023). Civil Application E016 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/81/eng@2023-09-22

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