THE OFFICIAL RECEIVER AND LIQUIDATOR v FREIGHT FORWARDERS KENYA LIMITED [2000] KECA 357 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you can ask a court to cancel its own order if circumstances beyond your control make compliance impossible.
What this practically means
#Executive summary
#Key legal issues
#Scope of 'any other sufficient reason' as a ground for review under Order XLIV rule 1 of the Civil Procedure Rules
The ground is not confined to reasons analogous with discovery of new matter or error apparent on the face of the record; inability to comply with an order because the funds were invested in an institution that became insolvent is a sufficient reason for review.
The court adopted the interpretation in Wangechi Kimita, where Nyarangi JA held that section 80 of the Civil Procedure Act confers an unfettered right to apply for review, so the third head need not be analogous with the other two grounds. Hancox JA agreed. Applying that principle, the Official Receiver's inability to pay, arising from the insolvency of Jimba Credit Finance where the money had been placed, exposed him to contempt and constituted a sufficient reason for review, irrespective of whether the deposit complied with section 342 of the Companies Act.
Whether the mode of keeping liquidation funds under section 342 of the Companies Act defeated the review
Whether Jimba Credit Finance fell within 'or such other bank as may be prescribed' did not change the fact that the appellant had shown sufficient reason for review.
Section 342 requires the Companies Liquidation Account to be kept with the National Bank of Kenya Ltd or such other bank as may be prescribed. The court noted it was not told whether Jimba Credit Finance fell within the prescribed category, but held that even if the deposit breached the section, this did not alter the conclusion that the appellant's predicament warranted review of the payment order.
Legal principles established
#- The words 'for any other sufficient reason' in Order XLIV rule 1 need not be analogous with the other grounds for review, because section 80 of the Civil Procedure Act confers an unfettered right to apply for review.
- A party who faces inability to comply with a court order through no wrongdoing of its own, exposing it to contempt, has shown 'any other sufficient reason' warranting review of that order.
Court orders
#- 1.Appeal allowed
- 2.Ruling of the superior court made on 23rd June 1994 set aside
- 3.Order of 28th April 1994 reviewed by setting it aside
- 4.Appellant awarded costs in this court and in the superior court
- On appeal from
- High Court of Kenya at Nairobi
- Winding Up Cause No. 6 of 1981
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the High Court in a winding up cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "THE OFFICIAL RECEIVER AND LIQUIDATOR v FREIGHT FORWARDERS KENYA LIMITED [2000] KECA 357 (KLR)", Case Analysis (2000). Civil Appeal Number 235 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/357/eng@2000-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.