Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal 67 of 1985· [1987] KECA 88 (KLR)

Securicor (Kenya) Ltd v EA Drapers Limited & another

Court of Appeal
3 July 1987
JGJ.M Gachuhi
2,228 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed it can hear new legal arguments on appeal when based on documents both sides already agreed to, as long as no new claim is introduced.

What this practically means

#

Executive summary

#
This is an interlocutory ruling of the Court of Appeal at Mombasa (Gachuhi JA) on an application by Securicor (Kenya) Ltd, the appellant, under Rule 44(1) of the Court of Appeal Rules for leave to file and argue two additional grounds of appeal (2A and 2B). The underlying suit concerned goods of E.A. Drapers Ltd stored with Combined Warehouses Ltd (CWL) as bailee; a Securicor guard stole 16 cases of clothing valued at Kshs 230,532. The High Court (Bhandari J) gave judgment against Securicor after the plaintiff lost against CWL on the interpretation of exception clauses. The additional grounds challenged the finding that Securicor owed a duty of care despite the absence of privity, and sought to rely on limitation and exclusion clauses in the contracts between the parties. The grounds had not been pleaded or argued at trial, but arose from contract documents admitted by consent. Applying the Connecticut Fire Insurance Co v Kavanagh principle, as adopted in Donaghey v P O'Brien and followed by the predecessor of the Court of Appeal in Armarshi Madhavji v Sardarital Ltd, the court held that a new point of law based on admitted documents may be entertained on appeal in the interest of justice so long as it introduces no new cause of action. The respondent conceded ground 2A and opposed only ground 2B. The application was allowed, with the amended grounds to be filed within seven days and costs of the amendment to be costs in the appeal. The decision below was not disturbed at this stage; the appeal itself remained pending.

Key legal issues

#
01

Entertainment of a new point of law on appeal based on admitted documents

Holding

Where the documents were put in by consent, all agreed facts were before the court, and no further evidence is needed, a new point of law on construction may be entertained on appeal.

Reasoning

The court applied the Connecticut Fire Insurance Co v Kavanagh principle as followed in Donaghey v P O'Brien and in the predecessor Court of Appeal. Since exhibits 1 to 4 were consented documents requiring only interpretation, and the additional grounds raised no new cause of action, justice favoured allowing the amendment.

p. 4
02

Discretion to allow additional grounds of appeal under Rule 44(1)

Holding

The discretion was exercised in favour of the appellant, allowing grounds 2A and 2B, with the amended grounds to be filed within seven days.

Reasoning

The appellant sought finality between the parties; the respondent conceded ground 2A and opposed only 2B. The court found the grounds arose from issues tried and the judgment below, and that no further evidence or pleading was required, so the discretion was exercised to allow the application.

p. 4

Legal principles established

#
  • A new point of law raised for the first time in a court of last resort may be entertained in the interest of justice so long as it does not introduce a new cause of action.

Court orders

#
  1. 1.Application allowed; grounds 2A and 2B included as additional grounds of appeal
  2. 2.Amended version of grounds of appeal to be filed within seven days from the date of the ruling
  3. 3.Costs of the amendment to be costs in the appeal
On appeal from
High Court at Mombasa
Jurisdiction invoked
Rule 44(1) of the Court of Appeal Rules (application for leave to amend grounds of appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Securicor (Kenya) Ltd v EA Drapers Limited & another", Case Analysis (1987). Civil Appeal 67 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/88/eng@1987-07-03

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