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Court of AppealPartially AllowedCivil Appeal 2 of 2020· [2022] KECA 937 (KLR)

Kenya Bureau of Standards v Kwale International Sugar Company Limited & 4 others

Court of Appeal
29 July 2022
PNP NyamweyaSKSG KairuJLJW Lessit
3,721 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 threw out a High Court judgment because the judge conducted a site visit without letting all parties participate, ordering a fresh trial.

What this practically means

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Executive summary

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KEBS appealed against a High Court judgment (E.K. Ogola J, 7th November 2019) in Mombasa Constitutional Petition No. 226 of 2018, in which Kwale International Sugar Company obtained declarations that a multi-agency raid, seizure of its factory and sugar, and refusal to renew its standardization permit violated constitutional rights, together with mandatory orders, injunctions and compensation. The Court of Appeal (P. Nyamweya, S.G. Kairu & J.W. Lessit, JJA) framed three issues: whether the High Court's procedure was irregular and unfair; whether it was functus officio; and whether the reliefs granted were merited. The court held that although Rules 20 and 21 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 grant the High Court wide latitude, including power to direct site visits and examine witnesses on its own motion, such interventions must afford all parties an opportunity to participate and make representations. The site visit of 7th March 2019, conducted after the close of trial and without representations from the parties, caused unfairness and prejudice and created the appearance or actuality of the court collecting evidence to fill gaps in a party's case. That finding was held dispositive, so the functus officio and merits questions were not addressed. The appeal was allowed; the entire High Court proceedings and judgment of 7th November 2019 were set aside and the petition remitted for a new trial before a judge other than E.K. Ogola J under Rule 33(c) of the Court of Appeal Rules, 2022. The appellant received the costs of the appeal; each party bears its own costs of the vitiated proceedings.

Key legal issues

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01

Whether the High Court's post-judgment directions, retesting order and site visit rendered the proceedings irregular and unfair

Holding

Yes. The site visit was conducted without giving the parties an opportunity to make representations, causing unfairness and prejudice; the subsequent procedures were also irregular and vitiated the proceedings.

Reasoning

The court held that although the 2013 Rules do not preclude site visits or post-emerging-issue directions, such interventions must allow all parties to participate. The site visit on 7th March 2019 occurred without representations from the parties, creating the appearance or actuality of the court collecting additional evidence to fill gaps in a party's case, and prejudicing the parties.

p. 6
02

Whether the High Court enjoyed wide discretion in hearing constitutional petitions

Holding

Yes, wide latitude and discretion is granted to the High Court under Rules 20 and 21 of the 2013 Rules, but it must be exercised judiciously in pursuit of substantive justice.

Reasoning

Rule 20 permits the court, on its own motion, to direct that a petition be heard by oral evidence and to examine or recall witnesses; Rule 21 permits directions and framing of issues at any stage. These powers, made pursuant to Article 22(3), must nonetheless be exercised judiciously and with the objective of expeditious substantive justice under Article 159.

p. 6
03

Whether the High Court was functus officio

Holding

Not determined on the merits; the procedural unfairness finding was dispositive of the appeal, so the functus officio question was not resolved.

Reasoning

Although the court framed functus officio as the second issue, it found the procedural unfairness dispositive and declined to address the remaining issues, including the merits of the decisions consequently made by the High Court. The proceedings were set aside and remitted for a new trial before a different judge.

p. 7

Legal principles established

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  • Court interventions such as site visits and directions after the close of trial must afford all parties an opportunity to participate and make representations, failing which the proceedings are vitiated.
  • Procedural directions in constitutional petitions should preferably be given at the pre-trial stage, or at the very least before the close of trial.
  • A first appellate court reconsiders the evidence and draws its own conclusions, departing from trial findings only where they were not based on the evidence, wrong principles were applied, or discretion was exercised injudiciously.

Court orders

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  1. 1.Appeal allowed
  2. 2.Entire proceedings of the High Court and judgment delivered on 7th November 2019 in Mombasa Constitutional Petition No. 226 of 2018 set aside
  3. 3.Mombasa Constitutional Petition No. 226 of 2018 remitted to the High Court at Mombasa for a new trial by a Judge other than E.K. Ogola J
  4. 4.Appellant to have the costs of the appeal
  5. 5.Each party to bear their own costs of the vitiated proceedings of the High Court

Authorities

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Legislation

  • Standards Act
  • Civil Procedure Actsection 3A
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 3(8)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 20
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 21
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 46
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 35
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 22(3)
  • Constitution of Kenya, 2010Articles 2, 3, 10, 19(1) & (2), 20(1) & (2), 21(1), 27, 48 & 50 (as declared violated by the High Court)
  • Court of Appeal Rules, 2022Rule 33(c)

Cases cited (5)

  • Selle and Another vs Associated Motor Boat Co. Ltd & Others
    (1968) EA 123

    Duty of a first appellate court to reconsider and evaluate evidence and draw its own conclusions.

  • Jabane vs Olenja
    [1986] KLR 661

    Appellate court may depart where the trial court acted on wrong principles of law.

  • Mbogo & Another vs Shah
    (1968) E.A

    Appellate interference where discretion was exercised injudiciously.

  • Independent Electoral and Boundaries Commission & Another vs Stephen Mutinda Mule & 3 others
    [2014] eKLR

    Importance of parties and the Court being bound by the pleadings (relied on by the Appellant).

  • Owners of the Motor Vessel 'Lillian S' v Caltex Kenya Ltd
    (1989) KLR 1

    Jurisdiction is paramount; without it a court should take no further steps (relied on by the Appellant).

On appeal from
High Court at Mombasa
Mombasa High Court Constitutional Petition No 226 of 2018
Jurisdiction invoked
First appellate jurisdiction under the Constitution; appeal from a constitutional petition, remittal under Rule 33(c) of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kenya Bureau of Standards v Kwale International Sugar Company Limited & 4 others", Case Analysis (2022). Civil Appeal 2 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/937/eng@2022-07-29

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