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Court of AppealOtherCivil Application (as per High Court Civil Suit No 2435 of 1982 proceedings)

Gurbaksh Singh & Sons Ltd v Bank of Credit & Commerce International (Overseas) Ltd [1984] KECA 67 (KLR)

Court of Appeal of Kenya
6 April 1984
1,877 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed lawyers can challenge an appeal's competence by raising an oral objection in court, and contempt applications must be precise.

What this practically means

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Executive summary

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The applicant company and its co-plaintiffs had sued the first respondent bank in High Court Civil Suit No 2435 of 1982, alleging that interest charged on an overdraft exceeded the rate prescribed under section 39 of the Central Bank of Kenya Act, rendering the loan, debenture and mortgages void. Chesoni J dismissed their application for a temporary injunction, and the Court of Appeal later discharged an interim injunction on the bank's undertaking not to exercise rights against the applicants' real property pending the intended appeal. The applicants then sought committal of the bank's general manager and the appointed receivers for contempt, but Trainor J dismissed that application and refused leave to appeal. Before the Court of Appeal on the applicants' motion for leave, the respondents objected that no appeal lies against a refusal of an order of committal for contempt. The applicant contended the objection had to be brought by notice of motion to strike out under rule 80, relying on rule 101(b). The court rejected that argument, holding that because the objection goes to jurisdiction rather than to the record or an omitted step - and because a struck-out application could be reinstated - the objection was properly taken orally in court. The court also stated, applying P v W (FD), that a committal summons alleging breach of an order must state the order definitively and give precise particulars of each breach with date, time and place. The applicant's notice of objection was rejected, no order was made on the courtesy notice of preliminary objection, and costs were awarded to the respondents. The question whether contempt of the Court of Appeal can be dealt with by the High Court under section 5(1) of the Judicature Act was expressly reserved for the intended appeal.

Questions the Court framed

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

  1. 1.Whether the respondents' objection that no appeal lies from the High Court's refusal of an order of committal for contempt must be brought by notice of motion to strike out under rule 80 (as the applicant contended) or may properly be taken as an oral preliminary objection in court
  2. 2.Whether the definition of 'appeal' in rule 2 of the Court of Appeal Rules, which includes an intended appeal, brings the applicant's intended appeal within rule 101(b)

Key legal issues

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01

Proper procedure for raising an objection to the jurisdiction of the Court of Appeal to entertain an intended appeal

Holding

The objection was properly taken as an oral preliminary objection in court; the applicant's notice of objection requiring a striking-out motion under rule 80 was rejected

Reasoning

The objection's substance is an objection to jurisdiction - that no appeal lies from refusal of committal - not to the content of the record or an omitted appeal step. A striking-out application, if successful, leaves the application capable of reinstatement, which would be misconceived where the defect is want of jurisdiction. Rule 101(b) precludes objections that could have been raised under rule 80, but the word 'appeal' in rule 2, read in context, does not extend to this intended appeal. The notice of preliminary objection, though courteous, was surplusage, though the court commended the practice of giving such notices.

p. 3
02

Requirements for a summons for committal for contempt alleging breach of a court order

Holding

The summons must not be vague; it must identify the order disobeyed definitively and give precise particulars of each breach, with date, time and place; if breaches are too numerous, examples should be given and the rest referred to

Reasoning

Relying on recent authority in P v W (FD), the court stated that this requirement of precision must be good law in relation to any application for committal for contempt. The court observed that the alleged appointment of receivers preceded the order of September 8 and 23, 1982, though the subsequent steps taken may have occurred afterwards, underscoring the need for dated, particularised allegations.

p. 2
03

Whether an alleged contempt of the Court of Appeal can be dealt with by the High Court under section 5(1) of the Judicature Act

Holding

The court declined to decide this question, reserving it for the intended appeal

Reasoning

Trainor J had assumed the order disobeyed was that of the Court of Appeal of September 23, 1982, reflected in the sealed formal order of October 8, 1982. The court noted that in due course it would consider whether contempt of this Court can be dealt with by the High Court under section 5(1) of the Judicature Act, and whether section 5(2), providing an appeal where a positive order is made, affects that question. The present application concerned only the competency of the objection to it.

p. 2

Legal principles established

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  • An objection that an appeal (including an intended appeal) is incompetent for want of jurisdiction may properly be raised as an oral preliminary objection in court and need not be brought by notice of motion to strike out under rule 80 of the Court of Appeal Rules
  • Where the contempt alleged is a breach of a court order, the summons for committal must state the order definitively and give precise particulars of each breach, with date, time and place
  • An application struck out may be reinstated, which is why a jurisdictional objection cannot be brought as a striking-out application

Court orders

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  1. 1.The notice of objection filed by the applicant on March 30, 1984 is rejected
  2. 2.It is held that the objection by the respondents was taken in the proper manner (as an oral objection in court)
  3. 3.No order is made on the notice of preliminary objection filed on March 29, 1984, it being an informal courtesy notice
  4. 4.Costs of the proceedings before the court in relation to the purported objection to the competency of the preliminary objection are awarded to the respondents

The bench

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

majority
majority
JN
J.O NyarangiAG. JUDGE OF APPEAL
majority
On appeal from
High Court of Kenya
High Court Civil Suit No 2435 of 1982 (decision of Trainor J of June 24, 1983; refusal of leave of August 12, 1983)
Jurisdiction invoked
Court of Appeal Rules (rules 2, 42, 80 and 101(b)); the court assumed for argument the appealability of refusal of an order for committal for contempt under section 5(1) of the Judicature Act (cap 8), leaving that question for the intended appeal
Consolidated with
High Court Suit No 2473 of 1982 (consolidated applications for injunction)

Relief refused

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The applicant's notice of objection that the preliminary objection was incompetent and had to be raised by notice of motion to strike out under rule 80

The objection goes to jurisdiction, not to the content of the record or an omitted step, so rule 80 striking-out is inappropriate; the word 'appeal' in rule 101(b) does not include an intended appeal in this context

p. 3

Costs

We order that the costs of the proceedings before us in relation to the purported objection to the competency of the preliminary objection be paid by the applicant to the respondents in any event.

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.

We accordingly reject the notice of objection filed by the applicant on March 30, 1984, and hold that the objection by the respondent has been taken in proper manner.
p. 3Disposition - rejection of the applicant's notice of objection
We order that the costs of the proceedings before us in relation to the purported objection to the competency of the preliminary objection be paid by the applicant to the respondents in any event.
p. 3Costs order in final orders
We say unhesitatingly that in our view an objection of this nature cannot be appropriately taken by way of a notice of motion to strike out the original application.
p. 3Jurisdictional objections raised orally, not by striking-out motion
The order alleged to be disobeyed should be stated definitively and precise details of the breaches given.
p. 2Precision required in committal for contempt

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, "Gurbaksh Singh & Sons Ltd v Bank of Credit & Commerce International (Overseas) Ltd [1984] KECA 67 (KLR)", Case Analysis (1984). Civil Application (as per High Court Civil Suit No 2435 of 1982 proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/67/eng@1984-04-06

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