Attorney-General v Revolving Tower Resturant [1988] KECA 105 (KLR)
The bottom line
#Kenya's Court of Appeal struck out appeal grounds raising a new 'monthly tenancy' argument never made in the lower court, showing you cannot change your case on appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether grounds 4 and 9 of the memorandum of appeal, which raised the new point that the tenancy was a monthly periodical tenancy, should be struck out for not having been canvassed in the court below
- 2.Whether the Court should exercise its discretion to permit a new point of law to be argued on appeal
Key legal issues
#Whether a new point of law may be raised for the first time on appeal
The Court agreed with the principle in Tanganyika Farmers' Association that a new point may only be allowed if full justice can be done, but noted the power has been exercised recently and that a court of last resort should not be bound by a manifestly wrong finding of law below. On the facts, the new point of a monthly tenancy was struck out.
The respondent relied on Tanganyika Farmers' Association to urge striking out grounds 4 and 9. The Court accepted those principles but observed that the discretion has been exercised recently in Securicor v Combined Warehouses, and that Amarshi Madhavji recognises the exceptional nature of the power. Since the monthly tenancy concept never appeared in the pleadings, evidence or submissions below, and the facts had not been explored to show its relevance, the Court struck out the offending new point while permitting truncation and possible substitution.
Effect of the pleadings and agreed issues on the nature of the tenancy claimed
The agreed issues and pleadings concerned an agreement for a lease for three years with an option to renew, not an executed lease; the trial judge was dealing with an agreement for a lease, the length of which was to be three years.
The Court reviewed the plaint, the defence, the agreed issues and the letter of 10th June 1985 referring to a draft lease, and concluded that what was in contemplation was an agreement for a lease for three years, requiring writing under section 3 of the Law of Contract Act with possession in part performance, rather than an executed lease. The trial judge may have been understood to find a concluded lease, but the pleadings show an agreement for a lease was what was tried.
Legal principles established
#- An appellate court has discretion to allow an appellant to take a new point on appeal only if full justice can be done to the parties and the matter was properly pleaded with all relevant facts elicited below
- A court of last resort should not be bound by a lower court's decision on a question of law which is manifestly wrong
Court orders
#- 1.Ground 4 of the memorandum of appeal struck out completely
- 2.Ground 9 of the memorandum of appeal struck out only to the extent that it raised the new point that the tenancy was a monthly periodical tenancy, leaving the ground as to the erroneous computation of anticipated profits over three years
- 3.Leave to the appellant to apply for substitution of other words relevant to ground 9 as truncated
- 4.Costs of the objection awarded to the respondent
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
- Not stated in the judgment
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over an appeal from the High Court (specific provision not stated in the judgment)
Relief refused
#Retention of grounds 4 and 9 of the memorandum of appeal in their original form
The concept of a monthly tenancy was raised for the first time on appeal; the facts had not been fully explored below and no intolerable situation would arise from striking the grounds out
Costs
The costs of the objection awarded to the respondent/applicant
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 think that this is a case where we should strike out ground 4 completely and ground 9 to the following extent
Our intention is to delete the offending new point of law. If what remains is not what the appellant wishes to argue, he can apply for the substitution of other words relevant to grounds 9 as truncated.
The costs of the objection we award to the respondent/applicant.
an appellate court has discretion to allow an appellant to take a new point if full justice can be done to the parties
it would be intolerable for a court of last resort to be bound by a lower court’s decision on a question of law which is manifestly wrong
Issues in the judgment
#The judgment does not state the appeal case number or the High Court case number in the appeal from reference
The Court states it agrees with the Tanganyika Farmers' Association principles but simultaneously notes the power has been exercised recently, creating some tension in the stated position on new points on appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney-General v Revolving Tower Resturant [1988] KECA 105 (KLR)", Case Analysis (1988). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/105/eng@1988-04-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.