GURBAKSH SINGH & SONS LIMITED vs BANK OF CREDIT & COMMERCE ) INTERNATIONAL (OVERSEAS LIMITED) AMIN M JINDANI ) [1984] KECA 97 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that objections to appeal jurisdiction can be raised as preliminary objections, and contempt applications must give precise particulars.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an objection that no right of appeal lies (an objection to jurisdiction) must be raised by notice of motion to strike out under Rule 80 of the Court's rules, or may be taken as a preliminary objection in court
- 2.Whether the definition of 'appeal' in the rules includes an intended appeal for the purposes of Rule 101(b)
Key legal issues
#The proper procedural vehicle for an objection to jurisdiction in an intended appeal
The objection that no appeal lies is properly taken as a preliminary objection raised in court, not by notice of motion to strike out under Rule 80; the applicant's notice of objection was rejected
The court reasoned that if the application were struck out it could in principle be reinstated, but reinstatement would be misconceived because the substance of the objection is to jurisdiction, not to the content of the appeal record or an omitted step. The definition of 'appeal' in the rules, read in context, does not include an intended appeal for the purposes of Rule 101(b).
Particulars required in committal proceedings for contempt
An application for committal for contempt of a court order must state the order definitively and give precise particulars of the alleged breaches, including date, time and place; where breaches are too numerous, some must be given as examples
Adopting recent authority in P v W (FD), the court held that this requirement of precision is good law in relation to any application for committal for contempt, since the alleged contemnor must know exactly what is alleged against him.
Legal principles established
#- An objection that no right of appeal lies from a decision, being an objection to jurisdiction, may properly be raised as a preliminary objection in court and need not be brought by notice of motion to strike out under Rule 80
- Where the contempt alleged is a breach of a court order, the summons or application for committal must give precise particulars of the breach, with the date, time and place, and must state the order alleged to have been disobeyed definitively
- An application dismissed (as opposed to struck out) cannot be reinstated; the possibility of reinstatement distinguishes a strike-out application from a preliminary objection
Court orders
#- 1.The applicant's notice of objection filed on 30th March 1984 was rejected
- 2.It was held that the respondents' objection by way of preliminary objection was taken in the proper manner
- 3.No order was made on the respondents' notice of preliminary objection filed on 29th March 1984
- 4.The costs of the proceedings before the Court in relation to the purported objection to the competency of the preliminary objection were ordered to be paid by the applicant to the respondents in any event
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Civil Case No 2435 of 1982
- Jurisdiction invoked
- Appellant's application for leave to appeal to the Court of Appeal under its rules; jurisdiction contested on the ground that no right of appeal exists from a refusal of an order of committal for contempt
Relief refused
#Leave to appeal against Trainor, J's decision of 24th June 1983
The application was defeated by the objection that no right of appeal exists from the High Court to the Court of Appeal against the refusal of an order of committal for contempt, and the objection was competent as a preliminary objection
Costs
The costs of the proceedings before the Court in relation to the purported objection to the competency of the preliminary objection to be paid by the applicant to the respondents in any event
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.
We accordingly reject the notice of objection filed by the applicant on 30th March, 1984, and hold that the objection by the respondent has been taken in proper manner.
We order that the costs of the proceedings before us in relation to the purported objection to the competency of the preliminbary objection, be paid by the applicant to the respondents in any event.
an objection to this nature cannot be appropriately taken by way of a notice of motion to strike out the original application
where the contempt alleged is a breach of the court's order, the summons for committal must not be vague, but must give precise particulars of the breach with the date, time and place thereof
Issues in the judgment
#The cause title is garbled, splitting the first respondent's name across lines and appearing to list additional individuals (Amin M Jindani, P S Bradley, Graham James Greer, Silcock) without clearly identifying which are first to fourth respondents
The judgment contains a typographical error in the costs order ('preliminbary')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "GURBAKSH SINGH & SONS LIMITED vs BANK OF CREDIT & COMMERCE ) INTERNATIONAL (OVERSEAS LIMITED) AMIN M JINDANI ) [1984] KECA 97 (KLR)", Case Analysis (1984). Civil Application No NAI 37 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/97/eng@1984-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.