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Court of AppealAllowedCivil Appeal No. 121 of 1995· [1995] KECA 88 (KLR)

Floriculture International Limited v Central Kenya Limited & 3 others [1995] KECA 88 (KLR)

Court of Appeal of Kenya
12 October 1995
2,027 words in judgment
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The bottom line

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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

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Executive summary

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This is a ruling delivered in chambers by Shah JA on an application by Floriculture International Limited, the appellant in Civil Appeal No. 121 of 1995, to amend its memorandum of appeal against a ruling of Hayanga J of 7th July 1995 in H.C.C.C. No. 1597 of 1994. Counsel for the applicant sought six amendments, including a new ground challenging the learned judge's jurisdiction to entertain an originating summons filed by Central Kenya Limited. Applying Kenindia Assurance Co Ltd v Otiende, the judge held that the normal bar on raising new points on appeal does not apply to questions of jurisdiction, and allowed the first amendment. He also allowed an amendment alleging that the court below had been asked by originating summons to determine weighty disputes of fact and allegations of fraud and misrepresentation, holding the objection that the point was not raised below unsound. Examining the record of a related appeal by agreement of counsel, he found the injunction granted on 20th June 1995 was ex parte and had been extended for an indefinite period on 7th July 1995 without a merits hearing, and allowed the fifth amendment to enable the full bench to consider these arguments. Minor amendments occasioning no prejudice were also allowed. The application was allowed in its entirety, with liberty to file the amended memorandum by 17th October 1995, costs of the application to be costs in the appeal, and counsel urged to seek urgent directions from the Chief Justice for early hearing of the three appeals filed.

Key legal issues

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01

Raising jurisdiction on appeal for the first time

Holding

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.

Reasoning

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.

p. 2
02

Originating summons as a vehicle for fraud and disputed facts

Holding

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.

Reasoning

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.

p. 2
03

Ex parte injunction extended indefinitely

Holding

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.

Reasoning

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.

p. 3
04

Amendments causing no prejudice

Holding

Minor amendments (addition of words such as '(including the appellant)' and '(first)' and '(second)') were allowed as they occasioned no prejudice to any party.

Reasoning

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.

p. 2
05

Function of a single judge on an amendment application

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application for amendment of the memorandum of appeal is allowed in its entirety
  2. 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. 3.The numbering of the grounds is left to the applicant
  4. 4.Costs of the application to be costs in the appeal
  5. 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

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 36 rule 3A
  • Civil Procedure RulesOrder 36 rule 8A
  • Civil Procedure RulesOrder 36 rule 10
  • Civil Procedure RulesOrder 36 rule 12
  • Civil Procedure RulesOrder XXXIX
  • Registration of Titles ActSection 23(1)

Cases cited (6)

  • Kenindia Assurance Company Ltd v Otiende
    (1989) 2 KAR 162
  • Bhari vs Khan
    [1965] EA 94
  • Kulsumbai vs Abdulhussein
    [1957] EA 700
  • Kenya Commercial Bank vs Osebe
    [1982-88] 1 KAR 48
  • Lanston Monotype Corporation Ltd vs Anderson
    [1911] 2 KB 15
  • Scott Lindo vs Belisario
    [1795] 1
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.