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Court of AppealOtherCivil Application No. NAI 224 of 2006· [2014] KECA 508 (KLR)

Standard Chartered Financial Services & another v Manchester Outfitters (Suiting Division) Ltd (Now Known As King Woollen Mills Ltd) & 2 others [2014] KECA 508 (KLR)

Court of Appeal of Kenya
27 June 2014
RNR.N. NambuyePhilomena Mbete MwiluP.M. MwiluDMD.K. MusingaPKP.O. KiageJMJ. Mohammed
7,550 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to throw out an application to reopen its own 2002 judgment, ruling such questions need a full hearing, not a shortcut.

What this practically means

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Executive summary

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This is a ruling of a five-judge bench of the Court of Appeal at Nairobi delivered on 27th June 2014 in Civil Application No. NAI 224 of 2006, an application by Standard Chartered Financial Services Ltd and A.D. Gregory seeking to reopen, declare a nullity and set aside the Court's own judgment and order of 4th October 2002 in Civil Appeal No. 88 of 2000, and to have that appeal heard afresh. The applicants alleged that the impugned judgment was rendered without jurisdiction because the Court admitted documents de bene esse that the High Court never interrogated, that they were denied a fair hearing, and that Lakha JA was biased. Before the application could be heard, the 1st and 2nd respondents lodged a ten-ground preliminary objection contending that the Court has no jurisdiction to sit in judgment on its own final decisions, that the application was an abuse of process, and that it should be struck out with costs certified for two counsel. Kiage JA, writing the lead ruling with which Mwilu, Musinga and J. Mohammed JJA agreed, and in substantial concurrence with Nambuye JA's separate ruling, applied the Mukisa Biscuit test. While accepting that the jurisdictional challenge was properly taken as a point of law, the Court held that the objection could not be upheld because the existence of a residual jurisdiction to reopen the Court's own judgments in exceptional circumstances is itself a contentious question, and the alleged confluence of exceptions required full inter partes argument. The preliminary objection was dismissed, with costs to abide the outcome of the applicants' motion dated 18th August 2006. The substantive application remains to be heard and determined.

Key legal issues

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01

Whether the preliminary objection was a pure point of law under the Mukisa Biscuit test

Holding

The objection on want of jurisdiction to reopen the Court's own decision was properly taken as a preliminary objection, being an example of a pure point of law, but that alone did not entitle the objectors to have it upheld.

Reasoning

Applying Law JA's definition in Mukisa Biscuit, an objection to the jurisdiction of the court is a classic preliminary objection. However, the test also requires that no facts be in dispute and that no judicial discretion be invoked. Both sides disputed the factual and jurisdictional basis of the impugned judgment, and both invited the exercise of discretion, so the objection could not be upheld summarily.

p. 12
02

Whether the objection should be upheld and the application struck out as an abuse of process

Holding

The objection was dismissed. Whether the Court has jurisdiction to rehear or review its own judgments, especially where exceptions of nullity, denial of hearing and alleged bias are alleged, requires full inter partes argument.

Reasoning

The question is not plain and obvious: authorities pre-Rai v Rai suggest such jurisdiction exists while the majority of decisions deny it, and persuasive decisions from Uganda and Tanzania diverge. The applicants allege a rare confluence of exceptions including admission of documents de bene esse, denial of fair hearing, and bias of a member of the bench. Disposing of these liminally would offend audi alteram partem and the duty to do substantial justice untrammeled by technicalities.

p. 13
03

The proper character and use of preliminary objections

Holding

A preliminary objection is a pre-emptive strike invoking the Court's summary jurisdiction and should be deployed with restraint; points that can be argued in the normal manner should not improperly be raised as preliminary objections.

Reasoning

Drawing on Sir Charles Newbold's caution in Mukisa Biscuit, the Court observed that the increasing practice of raising points improperly by way of preliminary objection unnecessarily increases costs and confuses issues. The issues raised in this objection could well have been ventilated as a response to the application.

p. 13

Legal principles established

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  • A preliminary objection must be upheld only in the clearest of cases where no valid argument or dispute exists as to what is asserted, and if the issue calls for serious disputation it should not be disposed of at the threshold without full merit-based argument.
  • A preliminary objection cannot be raised where any fact has to be ascertained or where what is sought is the exercise of judicial discretion.
  • The question whether the Court of Appeal possesses residual or inherent jurisdiction to reopen its own final judgment in exceptional circumstances remains an open and contentious question that must be determined on full argument, not summarily on a preliminary objection.

Court orders

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  1. 1.The preliminary objection of the 1st and 2nd respondents is dismissed
  2. 2.Costs to abide the outcome of the applicants' motion dated 18th August 2006

Authorities

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Legislation

  • Constitution of Kenya (retired)Section 64
  • Constitution of Kenya (retired)Section 77(a)/77(9)
  • Appellate Jurisdiction Act (Cap 9)Section 3
  • Appellate Jurisdiction Act (Cap 9)Section 2
  • Judicature Act (Cap 8)Section 3
  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 29(1)
  • Court of Appeal RulesRule 31
  • Court of Appeal RulesRule 35(1)(2)
  • Civil Procedure Act (Cap 21)Section 66
  • Supreme Court ActSection 14

Cases cited (20)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Limited
    [1969] EA 696
  • Lakhamshi Brothers Limited v R. Raja & 5 others
    [1966] EA 313
  • Vallabhalai Karsandas Ranica v Mansukhlal Jiuras and others
    [1965] EA 700
  • Man Singh Madhu Singh Darbar v Vijay Morjaria
    Civil Application No. Nai 366 of 2000 (UR)
  • Musiara Limited v William ole Ntimama
    Nairobi CA No. 271 of 2003 (UR); [2005] 1 EA 317
  • Chris Mahinda T/A Nyeri Trade Centre v Kenya Power & Lighting Co. Limited
    Civil Application No. Nai 174 of 2005 (106/2005 UR)
  • Taylor & Another v Lawrence & Another
    [2002] 2 ALL ER 353
  • Anarita Karimi Njeru v The Republic (No.2)
    [1971] EA 79
  • Somanis v Shirinkhanu (No.2)
    [1971] EA 79
  • Owners of the Motor Vessel "Lilian S" v Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Transport Equipment Limited v Valambhia
    [1994] 1 LRC 114
  • Jasbir Singh Rai and 3 others v Tarlochan Singh Rai and 4 others
    Nairobi Civil Application No. Nai 307 of 2003 (154/2003 UR); [2013] eKLR
  • Peter Ng'ang'a Muiruri v Credit Bank Limited & 2 others
    [2008] eKLR
  • Wanje v Saikwa
    [1984] KLR 275
  • Murphy v Stone Wall Work (Chariton) Limited
    [1969] 2 ALL ER 949
  • Tanganyika Farmers Association Ltd v Unyamwezi Development Corporation Limited
    [1960] EA 620
  • Patrick Gathenya v Esther Njoki Rurigi & Another
    Civil Application No. NAI 290 of 2005 (UR 180/05)
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others
    [2012] eKLR
  • Nyamodi Ochieng Ramogo & Anor v Kenya Posts & Telecommunications Corporation
    Civil App. No. Nai 9 of 1994
  • R v Bow Street Metropolitan Stipendiary Magistrates & Others ex parte Pinochet Ugarte (No.2)
    [1999] 1 ALL ER 577
On appeal from
High Court of Kenya
H.C.A. No. 88 of 2000
Jurisdiction invoked
Sections 64 and 77(9) of the retired Constitution, Section 3 of the Appellate Jurisdiction Act (Cap 9), Section 3 of the Judicature Act (Cap 8) and/or Rule 1(2) of the Court of Appeal Rules (as invoked by the applicants' motion)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Standard Chartered Financial Services & another v Manchester Outfitters (Suiting Division) Ltd (Now Known As King Woollen Mills Ltd) & 2 others [2014] KECA 508 (KLR)", Case Analysis (2014). Civil Application No. NAI 224 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/508/eng@2014-06-27

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