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Court of AppealDismissedCivil Appeal (Application) 63 of 2018· [2022] KECA 1272 (KLR)

Tornado Carriers Limited v Kenfreight Uganda Limited & another

Court of Appeal
18 November 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
2,786 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to let a foreign judgment dispute reach the Supreme Court, ruling the issues were private and the application was filed too late.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (S.G. Kairu, P. Nyamweya and J. Lesiit, JJA) on an application by Kenfreight Uganda Limited and Kenfreight East Africa Limited - the respondents in the main appeal - for leave to appeal to the Supreme Court against the Court of Appeal's judgment of February 14, 2019, which had set aside the High Court of Kenya's recognition of a Kampala foreign judgment awarded against Tornado Carriers Limited for stolen goods in transit. The applicants argued that the Court of Appeal misinterpreted the law on enforcement of foreign judgments, retried the merits of the Ugandan case, and wrongly interfered with the High Court's discretion on jurisdiction. The court first found the application incompetent under Rule 40(2) of the Court of Appeal Rules, 2010, as it was filed about two months after the impugned judgment, well outside the fourteen-day window, with no extension of time. On the merits, applying the Supreme Court's Steyn v Gnecchi Ruscone criteria, it held the issues raised were private-contract disputes turning on facts, not matters of general public importance transcending the parties. It further held that the Court of Appeal, as first appellate court, was entitled to re-evaluate the High Court's decision on recognition, and that interrogation of the foreign court's jurisdiction is central under section 4 of the Foreign Judgments (Reciprocal Enforcement) Act. The application was dismissed with costs to the respondents.

Key legal issues

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01

Certification criteria for an appeal to the Supreme Court

Holding

The applicants failed to demonstrate that the issues transcend the particular case or bear on the public interest; the criteria in Steyn v Gnecchi Ruscone were not met

Reasoning

The court applied the Supreme Court's Steyn criteria: the intending appellant must show the issue transcends the litigation and bears on the public interest. The disputes here arose from a private contract between private companies and turned on facts and evidence, so certification was refused.

p. 3
02

Timeliness of the certification application

Holding

The application filed on April 15, 2019 against a decision of February 14, 2019 was out of time under Rule 40(2) and incompetent, with no extension of time granted

Reasoning

Rule 40(2) requires a certification motion within fourteen days of the decision. The application was lodged about two months late and no evidence of extension of time was produced, rendering it incompetent before the court.

p. 3
03

Role of the Court of Appeal in reviewing recognition of a foreign judgment

Holding

It was within the Court of Appeal's remit to interrogate whether the High Court correctly applied the law on recognition of the Kampala judgment; this did not amount to sitting on appeal over the Ugandan court

Reasoning

Relying on Abok James Odera and Selle, the court held that as first appellate court it could re-evaluate the High Court's decision on recognition of the foreign judgment. Interrogating the competence of the foreign court is key under section 4 of the Foreign Judgments (Reciprocal Enforcement) Act and private international law.

p. 4

Legal principles established

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  • An application for certification of a point of law of general public importance must be made within fourteen days of the decision sought to be appealed against; filed out of time without extension, it is incompetent
  • The role of the Court of Appeal as a first appellate court is essentially one of retrying the case before the High Court and evaluating its decision in light of the evidence and applicable law
  • Defending a matter does not mean a party has submitted to the jurisdiction of an originating court, especially where appearance is entered solely to object to jurisdiction

Court orders

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  1. 1.The applicants' Notice of Motion dated April 15, 2019 is found not to have merit and is dismissed with costs to the respondents

Authorities

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Legislation

  • Civil Procedure Actsection 3A
  • Supreme Court Rules, 2011Rule 24
  • Court of Appeal Rules, 2010Rules 39 and 40 (including Rule 40(2))
  • Foreign Judgments (Reciprocal Enforcement) Actsection 4, section 4(2), section 4(2)(b)(i)
  • Constitution of Kenya, 2010Article 163(4)
  • Convention on the Recognition of Foreign Judgments in Civil and Criminal Mattersarticles 4 to 7
  • Ugandan Civil Procedure RulesOrder 9 Rule 3

Cases cited (6)

  • Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone
    (2013) eKLR

    Criteria for certification of a matter of general public importance

  • Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR

    Role of the Court of Appeal as a first appellate court

  • Selle and another v Associated Motor Boat Co. Ltd
    [1968] EA 123

    First appellate court's duty to re-evaluate evidence

  • Jayesh Hasmukh Shah v Navin Haria & another
    [2016] eKLR

    Interrogation of the jurisdiction of the foreign court in recognition applications

  • Adams & others v Cape Industrials PLC
    (1990) Ch. 433

    Jurisdiction and competence of the foreign court under private international law

  • Re: Dulles Settlement (No. 2) Dulles v Vidler
    [1951] 1 CH 842

    Appearance solely to object to jurisdiction is not submission to jurisdiction

On appeal from
Court of Appeal
Jurisdiction invoked
Article 163(4)(b) of the Constitution - certification that a matter of general public importance is involved; section 3A Civil Procedure Act, Rule 24 Supreme Court Rules 2011, Rules 39 and 40 Court of Appeal Rules 2010

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, "Tornado Carriers Limited v Kenfreight Uganda Limited & another", Case Analysis (2022). Civil Appeal (Application) 63 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1272/eng@2022-11-18

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