Kenya Ports Authority v Maur Abdalla Bwanamaka [2019] KECA 190 (KLR)
The bottom line
#Kenya's Court of Appeal let a procurement challenge survive even though the tender was completed, but struck down court orders made against a non-party without a hearing.
What this practically means
#Executive summary
#Key legal issues
#Overtaking of a petition by events
Prayers tied to a completed performance (cancellation of tender, injunctions against installation) were overtaken by events, but the petition was not merely limited to the tender award; the question of conformity of the cranes supplied with tender specifications remained live, so the judge properly declined to strike out the petition.
The Court found, on the record, that the tender for the cranes had been performed and the cranes installed and commissioned. Prayers for cancellation of the contract and injunctions restraining installation could no longer be granted. However, the petition also sought declarations regarding compensation, restitution and breach of fiduciary, statutory and public duty, raising the question whether the cranes supplied conformed to tender requirements. That question remained live for trial, so striking out was properly refused.
Discretion to strike out pleadings
The power to strike out is discretionary and to be exercised with the greatest care and caution; a suit with a semblance of a cause of action should not be summarily dismissed.
The Court applied Crescent Construction and D.T. Dobie: the power to strike out is discretionary and exercised with greatest care and caution, and no suit should be summarily dismissed unless it plainly discloses no reasonable cause of action and is incurable by amendment. Because the petition retained live issues, the dismissal of the striking-out application fell within proper exercise of discretion.
Orders beyond the pleadings and against a non-party
The learned judge exceeded his mandate by ordering the appellant, the 4th respondent and World Crane Services to file reports on tender performance when no such prayers existed, and violated Article 50(2) by ordering a report from World Crane Services which was not a party and had no opportunity to be heard. Those orders were set aside.
The Court found no prayers in the petition or the striking-out application supporting the directions for reports. Parties are bound by their pleadings, and the question of proper performance was for the trial court at the substantive hearing. Ordering a non-party (World Crane Services) to file a report also breached the right to be heard under Article 50(2) of the Constitution.
Legal principles established
#- An appellate court will not interfere with the exercise of a trial court's discretion unless it misdirected itself resulting in an erroneous decision, or it is manifest from the case as a whole that the court was clearly wrong and misjustice resulted.
- A trial court may only pronounce judgment on issues arising from the pleadings or as framed by the parties; parties are confined to their pleadings unless amended.
- A court may not order relief not pleaded, and cannot convert itself into an investigative body by directing reports on matters not prayed for; orders against a non-party without a hearing violate Article 50(2) of the Constitution.
Court orders
#- 1.The order of the High Court that the appellant, the 4th respondent and World Crane Services submit reports on the tender performance is set aside
- 2.The appeal against the High Court's dismissal of the application dated 27th September 2016 is dismissed
- 3.Each party to bear their own costs
- On appeal from
- High Court of Kenya at Malindi
- Malindi H.C. Constitutional Petition No. 17 of 2015 (ruling on application dated 27th September 2016)
- Jurisdiction invoked
- First appeal to the Court of Appeal against the exercise of discretion of the High Court (the judgment does not state the specific constitutional/statutory provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Ports Authority v Maur Abdalla Bwanamaka [2019] KECA 190 (KLR)", Case Analysis (2019). Civil Appeal No. 49 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/190/eng@2019-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.