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Court of AppealPartially AllowedCivil Appeal No. 118 of 2018· [2019] KECA 471 (KLR)

Misnak International (uk) Limited v 4mb Mining Limited C/o Ministry of Mining, Juba Republic of South Sudan & 3 others

Court of Appeal of Kenya
25 July 2019
3,723 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a Kenyan court has no power over a foreign company unless it first grants leave to serve summons abroad and service is actually done.

What this practically means

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Executive summary

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This is an interlocutory appeal against a ruling of the High Court at Mombasa (Njoki Mwangi, J.) dated 6th July 2018 dismissing the appellant's preliminary objection challenging the competency of a suit filed by the 1st respondent, a South Sudanese mining company engaged in a freight forwarding contract with the UK-registered appellant. The consignments passed through the Port of Mombasa; a dispute over invoices led the 1st respondent to sue in Kenya, serving process on the foreign defendant by email without first obtaining leave to serve summons outside the High Court's jurisdiction. The Court of Appeal held that the decisive question was whether the High Court had assumed jurisdiction over the appellant. Since the leave application for service out of jurisdiction had never been determined and, as counsel conceded, no such service had been effected, the High Court had not assumed jurisdiction over the foreign defendant when it dismissed the objection. The appellant's awareness of the suit and its conditional memorandum of appearance could not cure this. The Court applied Raytheon Aircraft Credit Corporation v Air Al-Faraj and adopted Aburili, J.'s reasoning in Law Society of Kenya v Martin Day. It declined to entertain the contractual forum argument raised for the first time on appeal. The appeal was allowed: the High Court ruling was set aside to the extent that it dismissed the preliminary objection, substituted with an order upholding it, with costs to the appellant against the 1st respondent both in the High Court and on appeal.

Key legal issues

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01

Whether the High Court had assumed jurisdiction over a foreign defendant at the time it dismissed the preliminary objection

Holding

It had not. No leave to serve summons outside the jurisdiction had been granted and no service effected, so the preliminary objection should have been allowed on that ground alone.

Reasoning

Summons to enter appearance serve a dual purpose: giving notice of the suit and empowering the court to assume jurisdiction over a defendant outside its jurisdiction. The leave application under Order 5 Rule 25 must first be determined to weigh whether the case is proper for service out of Kenya; only after such leave and actual service does the court acquire jurisdiction. The learned Judge directed service of the application without first determining the leave question, placing the cart before the horse. Counsel for the 1st respondent conceded no service had occurred. Article 159(2)(d) could not confer jurisdiction where none existed.

p. 4
02

Whether an appellate court may take on board matters never raised before the trial court

Holding

No. A first appellate court's mandate is to reappraise matters that were before the trial court; the contractual forum argument was rejected as raised for the first time on appeal.

Reasoning

The Court framed its role as reappraising the evidence or issues before the trial court and making its own conclusion, which does not entail taking on board matters never brought to the trial court's attention. The appellant's submission on exclusive contractual forum and English law was never a ground in the memorandum of appeal nor considered below, so the Court declined to entertain it.

p. 3
03

Whether the failure to file summons together with the plaint, and the lack of a filing stamp, rendered the suit a nullity

Holding

Such defects are contingent on the jurisdiction question; the core defect here was the absence of jurisdiction over the foreign defendant, not the filing technicality.

Reasoning

The Court treated the complaints about filing of summons with the plaint as concomitant issues contingent on the determination of jurisdiction. Once it found that the High Court had never assumed jurisdiction over the appellant, the preliminary objection succeeded on that ground alone, making it unnecessary to resolve the filing-stamp technicality separately.

p. 4

Legal principles established

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  • A court assumes jurisdiction over a foreign defendant only upon prior leave for service out of jurisdiction and actual service of summons; service before leave, or the defendant's mere knowledge of the suit, does not confer jurisdiction.
  • Leave to serve summons out of Kenya must be supported by affidavit or other evidence and granted only where the case is a proper one for service out of Kenya.
  • Article 159(2)(d) cannot be invoked to cure the absence of jurisdiction; jurisdictional defects are not mere procedural technicalities.

Court orders

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  1. 1.Appeal allowed
  2. 2.High Court ruling dated 6th July 2018 set aside to the extent that it dismissed the preliminary objection
  3. 3.Substitution of an order upholding the preliminary objection
  4. 4.1st respondent to meet costs both at the High Court and in the appeal
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 30 of 2018
Jurisdiction invoked
First appellate jurisdiction under the Civil Procedure Act/rules; interlocutory appeal as of right against a ruling on a preliminary objection

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Misnak International (uk) Limited v 4mb Mining Limited C/o Ministry of Mining, Juba Republic of South Sudan & 3 others", Case Analysis (2019). Civil Appeal No. 118 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/471/eng@2019-07-25

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