Floriculture International Limited v Central Kenya Limited & 3 others [1995] KECA 88 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you can challenge a judge's jurisdiction for the first time on appeal, and indefinitely extended ex parte injunctions have no procedural basis.
What this practically means
#Executive summary
#Key legal issues
#Raising jurisdiction on appeal for the first time
The normal rule that a party may not raise a point for the first time on appeal does not apply where the point goes to jurisdiction; leave to add such a ground was granted.
The court relied on Kenindia Assurance Co Ltd v Otiende for the proposition that the bar on new points on appeal does not apply to jurisdictional issues. The judge expressly did not decide whether the court below had jurisdiction, only whether the proposed ground was arguable and should be admitted for full-bench hearing.
Originating summons as a vehicle for fraud and disputed facts
A ground complaining that the court below was asked by originating summons to adjudicate fraud, misrepresentation and disputed facts was properly added, as the objection that the point was not raised below was unsound given the undenied nature of the application below.
The respondent's own counsel confirmed the court below was asked by originating summons to determine disputes of fact and fraud. The court noted the judge below had himself referred to Bhari v Khan, Kulsumbai v Abdulhussein and Kenya Commercial Bank v Osebe on this point, and saw no sustainable objection to the amendment.
Ex parte injunction extended indefinitely
The judge expressed no doubt that the injunction of 20th June 1995 was ex parte in nature and that the judge below lacked procedural jurisdiction to extend it for an unlimited time without hearing the application on its merits.
Drawing on the record of Civil Appeal No. 127 of 1993 by agreement of counsel, the court examined the chamber summons which sought a hearing ex parte in the first instance and the formal order reciting a hearing in the absence of the defendants, and found the 20th June 1995 orders were ex parte and were indefinitely extended on 7th July 1995 without a merits hearing.
Amendments causing no prejudice
Minor amendments (addition of words such as '(including the appellant)' and '(first)' and '(second)') were allowed as they occasioned no prejudice to any party.
Objections to these amendments were dismissed as unmeritorious and made for the sake of objection, with the court characterising the objections as much ado about nothing.
Function of a single judge on an amendment application
The single judge's function is only to decide whether the proposed grounds are arguable enough to receive a full hearing by the full bench, not whether they will succeed.
The judge noted that this Court is the final court with an obligation to allow full argument, and that the eventual success of the amended grounds was not a matter for the application stage.
Legal principles established
#- An issue going to jurisdiction may be raised for the first time on appeal, and no admission or consent can confer jurisdiction on a court that does not have it.
- Weighty disputed questions of fact and allegations of fraud or misrepresentation cannot properly be determined by way of originating summons.
Court orders
#- 1.The application for amendment of the memorandum of appeal is allowed in its entirety
- 2.The applicant is at liberty to file on or before 17th October 1995 the amended memorandum of appeal incorporating the further grounds of appeal as sought
- 3.The numbering of the grounds is left to the applicant
- 4.Costs of the application to be costs in the appeal
- 5.Counsel are urged to seek directions from the Honourable Chief Justice for an urgent early hearing of all appeals arising out of the orders of 7th July 1995
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1597 of 1994
- Jurisdiction invoked
- Inherent jurisdiction under S. 3A of the Civil Procedure Act and the Court of Appeal's appellate jurisdiction over the ruling/order of Hayanga J dated 7th July 1995
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Floriculture International Limited v Central Kenya Limited & 3 others [1995] KECA 88 (KLR)", Case Analysis (1995). Civil Appeal No. 121 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/88/eng@1995-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.