Securicor (Kenya) Ltd v EA Drapers Ltd & another [1987] KECA 76 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it can hear new legal arguments on appeal when a case was decided on agreed facts and no new evidence is needed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the new grounds 2A and 2B, raising construction of the exclusion clauses in the two contracts, should be allowed to be argued for the first time on appeal
- 2.What the correct procedure is for amending a memorandum of appeal under rule 44 and for reference to the full bench under rule 54
- 3.Whether the plaintiff could be prejudiced by determination of the new questions on the agreed facts without remitting the matter to the High Court
Key legal issues
#Entertaining a new point of law for the first time on appeal
Where the case was decided on agreed facts and the new point is one of construction of documents raising no dispute of fact, the Court of Appeal may - and in this case should - allow the amendment and decide the new issues itself rather than remit to the High Court.
The court applied Connecticut Fire Insurance Co v Kavanagh: a question of law on construction of a document, on facts admitted or proved beyond controversy, may competently and expediently be entertained in a court of last resort. No evidence had been recorded below; the exclusion clauses were already conceded and before the parties; and given the elapsed time since 1977 it would be unjust to remit the dispute. Weighing hierarchy against doing full justice, the court preferred a complete decision on the whole problem.
Procedure for amendment and reference under the Court of Appeal Rules
A formal application to amend under rule 44 must first be heard by a single judge under rule 52; thereafter either side may refer the matter to the full bench under rule 54, which may rehear and vary, discharge or reverse the single judge's decision.
Because counsel had given informal notice of reference after the single judge's ruling and the procedure was doubted, the full court clarified the sequence: single judge first, then reference under rule 54. This guidance was given to settle practice, though the court also expressly endorsed the full bench's right to grant amendment on informal application during a hearing under rule 44(2).
Whether the plaintiff would be prejudiced by deciding the new contractual issues on the agreed facts
No prejudice arose: the plaintiff had conceded the Securicor-CWL contract, the clauses were no surprise, and no new facts could profitably arise; the remaining questions were purely ones of construing the contracts.
The court noted the case was decided on agreed facts with no evidence recorded, and the adjustment of one agreed fact (withdrawal of the reference to godown No 15) was insignificant. The tort nexus facts - Moses Aila on guard without possession of the godown - were agreed. What remained was scope of the exclusion clauses, a matter of construction, distinguishing the case from Privy Council authorities from other jurisdictions.
Legal principles established
#- A formal application for amendment under rule 44 is heard first by a single judge; after the single judge decides, a reference to the full bench may be made under rule 54, and the full bench may vary, discharge or reverse the single judge's decision.
- A new question of law, including construction of a document on agreed or undisputed facts, may be entertained for the first time in a court of last resort.
- The discretion to allow a new point for the first time on appeal must be exercised sparingly and only where all evidence is on record and no dispute of fact arises.
Court orders
#- 1.The reference to the full court is dismissed with costs
- 2.The amendment of the memorandum of appeal adding grounds 2A and 2B stands allowed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 44(1) and rule 54 of the Court of Appeal Rules - reference to the full court against a single judge's ruling allowing amendment of the memorandum of appeal
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.
In our opinion, Gachuhi JA was quite right to allow the amendment and the reference is dismissed with costs.
when there is a matter of construction of a document and no question arises of calling evidence or of dealing with disputed facts, not only may a new point be taken, but it may be the court's duty to decide it
After the single judge has made his decision, a reference to the full bench may be made by either side under rule 54 of the rules.
Certainly the cases show that the discretion must be exercised sparingly. The evidence must all be on the record and the new point must not raise disputes of fact.
Issues in the judgment
#The judgment states the claimed value of lost goods as Kshs 230,532 in the pleadings but Kshs 212,802 in the agreed facts, and the court itself notes uncertainty about the trial judgment figure, internally rendered variously as Kshs 230,538 and 230,532.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Securicor (Kenya) Ltd v EA Drapers Ltd & another [1987] KECA 76 (KLR)", Case Analysis (1987). Civil Appeal No 67 of 1985 (ruling on amendment of memorandum of appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/76/eng@1987-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.