Kenya Hotels Limited v Oriental Commercial Bank Limited
The bottom line
#Kenya's Court of Appeal refused to let Kenya Hotels add a new appeal ground never raised in the High Court, confirming appeals cannot smuggle in fresh arguments.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the full bench should interfere with the single judge's (K. M'Inoti, J.A.) decision disallowing the amendment of the memorandum of appeal
- 2.Whether the single judge erred or exercised his discretion injudiciously in refusing to allow a new ground of appeal based on alleged illegality for want of Land Control Board consent
Key legal issues
#Test for interference by a full bench with a single judge's discretionary decision under rule 44
The full bench may interfere only where the single judge considered irrelevant factors, failed to consider relevant factors, applied a wrong principle, or the decision is plainly wrong; the onus is on the party seeking the reference.
The Court adopted the principles in Mwangi v Kenya Airways Ltd, holding that a single judge exercises the whole court's powers and that interference is confined to the narrow grounds applicable to appellate interference with discretionary decisions. The appellant bore the burden of establishing error and failed to discharge it.
Whether a new ground of appeal based on illegality (lack of Land Control Board consent) could be introduced on appeal
No - where the issue was never pleaded, argued or adjudicated at trial and its resolution depends on contested facts, allowing the amendment would amount to adducing new evidence on appeal.
The intended ground concerned whether the suit property was agricultural land requiring Land Control Board consent. One party asserted it was agricultural land, the other that it had been converted to commercial use. That factual contest was never subjected to assessment by the trial court, so the new ground could not be entertained on appeal.
Legal principles established
#- A full bench will not interfere with a single judge's discretionary decision unless the single judge erred or exercised discretion injudiciously, and the onus lies on the party seeking the reference.
- A reference is not an appeal but a reconsideration of the manner in which a single judge exercised discretion on behalf of the Court.
- A full court may interfere with a single judge's discretion only where irrelevant factors were considered, relevant factors ignored, a wrong principle applied, or the decision is plainly wrong.
Court orders
#- 1.The reference from the single judge's decision is dismissed
- 2.Costs of the reference awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 195 of 2005 (OS)
- Jurisdiction invoked
- Rule 44 of the Court of Appeal Rules - reference from a decision of a single judge of appeal
Relief refused
#Setting aside the single judge's decision disallowing the amendment of the memorandum of appeal
The single judge exercised his discretion judiciously; the intended ground was never pleaded, argued or adjudicated below and amounts to an attempt to adduce new evidence
Costs
The reference was dismissed with costs to the respondent.
Quotable passages
#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 must reiterate that a reference is not an appeal, though it has the nature of one. It is no more than a re-consideration of the manner in which a single judge exercised his or her discretion on behalf of the Court.
the full bench will not interfere with the exercise of a discretion of a single judge of this Court unless it is clear that the single judge erred or exercised his discretion injudiciously. The onus is on the party who asked for the reference to establish this.
In view of the contestation by one party that the property is agricultural land and by the other that it had been converted to commercial use, it remains a factual matter of evidence which was never subjected to assessment by the trial court. As suspected by the respondent the applicant was in effect seeking to adduce new evidence.
All in all, we find no basis for disturbing the ruling by K. M'Inoti, J.A. Consequently, we dismiss this reference with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (7)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mary Wanja Chege v Lucy Wambui Kinyua & James Kamau8 Oct 2026applied
- Henry Opiyo Akama & another v John Oloo Ohando28 Sept 2026applied
- Omondi Lore v James Zadock Nyada Ojwaka, Land Registrar - Bondo & The Hon. Attorney General[2023] KEELC 17656 (KLR)25 May 2023followed
- Japhet Noti Charo v Kenya Airways Authority[2022] KECA 1316 (KLR)2 Dec 2022
- Stephen Vincent Jobling v Firearms Licensing Board[2022] KECA 1170 (KLR)28 Oct 2022
- Okeno & 2 others v Yhap (Application 27 of 2020)[2022] KECA 515 (KLR)6 May 2022applied
- Omweri v Kiptugen[2022] KECA 413 (KLR)4 Mar 2022applied
Cite this brief
#Cite this brief
Caselaw, "Kenya Hotels Limited v Oriental Commercial Bank Limited", Case Analysis (2019). Civil Appeal No. 252 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1037/eng@2019-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.