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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 14 of 2018

Ganjoni Properties Limited v Al-Riaz International Limited; Fuji King Motors Limited (Affected Party) [2018] KECA 399 (KLR)

Court of Appeal
12 July 2018
3,575 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck down orders made against an occupant who was never heard, ruling courts must first resolve jurisdiction challenges before making any orders.

What this practically means

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Executive summary

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This interlocutory appeal by Ganjoni Properties Limited challenged rulings of Otieno, J. (High Court, Mombasa, HCCC No. 158 of 2014) dated 29th January 2018 and amended on 1st February 2018, which reinstated Al-Riaz International Limited into leased premises and permitted it to break back into the premises. The dispute arose from a five-year lease over premises in Mombasa, its termination, rent defaults, a BPRT reassessment, consent orders for deposit of rent, and the appellant's distress for rent and eviction, carried out while various preservation orders were in place. Fuji King Motors Limited, to which the appellant had granted a fresh lease, joined as affected party. The appellant argued that no restraining orders were in force, that the Judge ignored non-payment of rent and pending jurisdictional challenges (the suit allegedly falling within the ELC's jurisdiction), and that the orders condemned the affected party unheard. The Court of Appeal held that a jurisdictional challenge, once raised, must be addressed immediately; it directed the High Court to determine the pending jurisdiction issue on a priority basis without pre-empting it. On the merits, the Court found that the Judge breached the rules of natural justice by issuing orders affecting the affected party despite knowing of its possession, and that mandatory injunction-type orders required clear circumstances which were absent. The Court allowed the appeal, set aside the orders of 29th January 2018 and 1st February 2018 in their entirety, and declined to make any order on costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court should have determined the challenge to its jurisdiction before issuing further interlocutory orders
  2. 2.Whether the learned Judge properly exercised his discretion in issuing the orders of 29th January, 2018 and 1st February, 2018
  3. 3.Whether the orders were made in breach of natural justice given the affected party's occupation of the premises
  4. 4.Whether mandatory injunction-type orders were justified on the prevailing circumstances

Key legal issues

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01

Priority of jurisdictional challenges

Holding

A jurisdictional challenge must be decided immediately once raised; the High Court erred in issuing further orders without determining the pending jurisdiction question, which must now be determined on a priority basis

Reasoning

Relying on the celebrated Lillian S case, the Court held that jurisdiction clothes a court with authority to determine disputes; without it, a court must put down its tools and any orders issued are futile. Because submissions on jurisdiction were already pending before the High Court, the Court declined to pre-empt the decision but directed that the issue be considered and determined on a priority basis.

p. 4
02

Right to be heard / natural justice

Holding

The impugned orders were invalid because the learned Judge made them against the affected party, whose possession of the premises had been brought to his attention, without giving it an opportunity to be heard

Reasoning

It was common ground that before issuing the orders the Judge was told of the affected party's possession of the suit premises. That should have prompted him at the very least to give the affected party an opportunity to address him, since any orders affecting the premises would affect it. By failing to do so, he breached the rules of natural justice, rendering the exercise of discretion improper.

p. 5
03

Interference with discretionary interlocutory orders

Holding

The appeal was an appeal against the exercise of discretion; the Judge's discretion was improperly exercised and the orders were set aside in their entirety

Reasoning

Guided by the Coffee Board principles, the Court may interfere where the judge misdirected himself or was clearly wrong and occasioned injustice. The Judge issued mandatory injunction-type orders based on ambiguous 'prevailing orders' without hearing the affected party and without determining the jurisdiction question; the circumstances were not clear and the discretion was thus improperly exercised.

p. 4
04

Ambiguity of 'prevailing orders' as a basis for mandatory relief

Holding

The reference in the 14th December, 2017 order to 'prevailing orders' being maintained was ambiguous and could not, without hearing the parties, found mandatory relief

Reasoning

The Judge based his orders on limb 3 of the 14th December 2017 order that 'prevailing orders be maintained till the hearing date'. What those prevailing orders were could only be answered when the parties' respective positions were heard, especially given the numerous prior orders. The Court declined to say more to avoid pre-empting the pending application.

p. 5

Legal principles established

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  • A challenge to jurisdiction, once raised, must be addressed immediately before a court proceeds to determine the dispute
  • An appellate court will not interfere with the exercise of judicial discretion unless the judge misdirected himself or was clearly wrong and occasioned injustice
  • Where orders will adversely affect a third party known to be in occupation or interested, that party must be heard before the orders are made; failure to do so is a breach of natural justice
  • Mandatory injunctions should as a general rule only be granted in clear circumstances

Court orders

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  1. 1.Set aside the orders dated 29th January, 2018 and 1st February, 2018 in their entirety
  2. 2.No order on costs - each party to bear own costs
  3. 3.Directive that the High Court consider and determine the issue of jurisdiction on a priority basis as soon as reasonably practicable

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Martha Karambu Koome
M.K. KoomeJA
Currently serving
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.C No. 158 of 2014
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over an interlocutory decision of the High Court (specific constitutional/statutory provision not stated in the judgment)

Relief refused

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Substantive determination of the pending application dated 15th January, 2018

The Court declined to make findings touching on the application which remains pending before the High Court

p. 5

Costs

No order as to costs; due to the circumstances under which the impugned orders were issued the Court did not think it just to make orders on costs

Quotable passages

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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 find that the appeal has merit for the reasons stated herein above and we hereby set aside the orders dated 29 th January, 2018 and 1st February, 2018 in their entirety
p. 5Final orders - setting aside of impugned orders
Due to the circumstances under which the impugned orders were issued we do not think it will be just to make orders on costs
p. 5Costs - no order as to costs
Jurisdiction must be acquired before judgment. It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on evidence before the court.
p. 4Priority of jurisdictional questions
the right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system
p. 4Natural justice - right to be heard
the orders issued being in the nature of a mandatory injunction should as a general rule have been granted in clear circumstances
p. 5Mandatory injunctions - clear circumstances required

Issues in the judgment

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minor

The judgment records the affected party as 'AFFECTED PARTY' in the title but it was represented and made submissions as an interested party; the parties list labels it 'affected party' rather than interested_party, and its standing was itself disputed by the respondent

minor

The judgment is dated 'this 12th day of July, 2018' at the signature block, while the High Court decisions under appeal are dated 29th January 2018; no internal contradiction but the appeal-from decision was 'amended on 1st February, 2018' making the decision-date fields imprecise

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, "Ganjoni Properties Limited v Al-Riaz International Limited; Fuji King Motors Limited (Affected Party) [2018] KECA 399 (KLR)", Case Analysis (2018). Civil Appeal No. 14 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/399/eng@2018-07-12

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