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ELCDismissedCivil Appeal No E001 of 2021· [2022] KEELC 742 (KLR)

West African Foodstuffs Co Ltd & 2 others v Kayser Investment Limited [2022] KEELC 742 (KLR)

High Court of Kenya at Nairobi
18 March 2022
4,433 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed the appeal, restoring orders requiring the judgment debtors to deposit Kshs.3,573,800 into an escrow account within 30 days or face execution.

What this practically means

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Executive summary

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This is a first appeal to the High Court at Nairobi against the Ruling of Hon. D. M. Kivuti, SRM, delivered on 19th January 2021 in proceedings arising from MCCOMMSU NO. E84 OF 2020. The Respondent had obtained judgment against the Appellants for Kshs.3,573,800/= after interlocutory judgment and formal proof, and had frozen the Appellants' I&M Bank account through garnishee proceedings. The Appellants filed an application dated 17th November 2020 seeking to set aside the judgment and discharge the freezing order. Midway through those proceedings, their counsel made an oral application to lift the freezing orders pending disposal of the pending application; the trial magistrate rendered an interim Ruling directing, among other things, deposit of the decretal sum into an escrow account in the names of the parties' advocates. The Appellants appealed on five grounds, contending that the magistrate issued orders not prayed for and pre-empted the pending application. The court held that the Ruling was a discretionary decision not appealable as of right, though a prior ruling by On'gudi J had held leave unnecessary. Having invited the determination, the Appellants could not complain of it; the magistrate had jurisdiction under Section 63(e) of the Civil Procedure Act to make interlocutory orders; and the appellants had failed to establish any threshold for interfering with discretion, nor could they raise grounds about the validity of the judgments which were not in the memorandum of appeal. The appeal was dismissed with costs to the Respondent, the orders of 11th November 2021 were vacated, the magistrate's escrow account orders were restored, and the decretal sum was to be deposited within 30 days, failing which execution could proceed.

Key legal issues

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01

Power of the court to render an interim ruling on an oral application while a fuller application was pending

Holding

Once counsel made an oral application inviting the court to lift the freezing orders, the trial magistrate was duty-bound to render a determination, whether interim, interlocutory or final, and the appellants cannot complain of the ruling they invited

Reasoning

The impugned ruling arose not from the pending application dated 17th November 2020 but from an oral application by the appellants' own counsel on 15th January 2021. Having invoked the court's intervention, a determination was expected either way. A court is vested with jurisdiction to grant interim rulings and orders, provided such orders protect the rule of law, and Section 63(e) of the Civil Procedure Act permits such interlocutory orders.

p. 4
02

Whether the terms imposed (deposit of the decretal sum into an escrow account) exceeded or abused the trial magistrate's discretion

Holding

The trial magistrate had discretion to impose such conditions as were just and convenient, including deposit of the decretal sum in an escrow account; the appellants failed to demonstrate any of the thresholds for appellate interference with discretion

Reasoning

The magistrate was aware of the judgment of Kshs.3,573,800/= and the pending application to set it aside, and was at liberty to mete out such terms as deemed appropriate. The court would itself have exercised the discretion differently, but the question is whether the discretion was exercised judiciously. No ground alleged arbitrariness, capriciousness, failure to consider relevant matters or consideration of extraneous matters, so the thresholds in Mbogoh v Shah and United India Insurance were not met.

03

Whether the appellants could urge grounds on the validity of the interlocutory and final judgments not contained in the memorandum of appeal

Holding

The appellants could not be permitted to canvass grounds of appeal beyond the four corners of the memorandum of appeal, per Order 42 Rule 4 of the Civil Procedure Rules 2010

Reasoning

During highlighting of submissions the appellants raised the validity of the interlocutory and final judgments, but these issues were neither enumerated nor espoused in the memorandum of appeal. Order 42 Rule 4 bars an appellant from urging grounds not set forth in the memorandum except with leave of the court, and no leave was sought or obtained.

p. 5

Legal principles established

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  • Where a right of appeal is not stipulated by statute, leave of the court from which the order was made must be sought and obtained; a right of appeal is conferred by statute and cannot be inferred
  • An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied that the decision is clearly wrong, through misdirection or taking into account matters it should not have, resulting in a wrong conclusion
  • A party who invites the court to make a determination cannot later complain that the court made a ruling which ought not to have been made
  • An appellant may not urge or be heard on any ground of objection not set forth in the memorandum of appeal, except with leave of the court

Court orders

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  1. 1.The Appeal vide Memorandum of Appeal dated the 25th January 2021 dismissed
  2. 2.The orders of the court issued on 11th November 2021 (limbs 1, 2, 3, 4 and 5) vacated and/or extinguished
  3. 3.The orders of the Learned Magistrate issued on 19th January 2021 relating to the opening of the Escrow Account in the names of the advocates for the respective parties restored and/or operationalized
  4. 4.The Escrow Account to be opened in the names of the advocates for the respective parties within 30 days
  5. 5.The entire decretal sum of Kshs.3,573,800/= to be deposited in the Escrow Account within 30 days of opening and held therein pending determination of the original proceedings in MCCOMMSU NO. E84 OF 2020 or until further orders
  6. 6.In default of the deposit, the Respondent to be at liberty to proceed with execution of the judgment
  7. 7.In the event of compliance, the Notice of Motion dated 17th November 2020 to be set down for inter-partes hearing and determination on a priority basis
  8. 8.Costs of the Appeal awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 63(e)
  • Civil Procedure ActSection 75
  • Civil Procedure Rules 2010Order 42 Rule 6(1)
  • Civil Procedure Rules 2010Order 42 Rule 4
  • Civil Procedure Rules 2010Order 43

Cases cited (5)

  • Francis Ndahebwa Twala v Ben Nganyi
    [2018] eKLR
  • Nyutu Agrovet Ltd Vs Airtel Networks Ltd
    [2015] eKLR
  • Child Welfare Society of Kenya Vs Republic, Exparte Child in Focus Kenya & AG & Others
    [2017] eKLR
  • Mbogoh & Another Vs Shah
    [1968] EA 93
  • United India Insurance Co. Ltd Kenindia Insurance Co. Ltd and Oriental Fire & General Insurance Co. Ltd Vs East African Underwriters (K) Ltd
    (1985) eKLR
On appeal from
Chief Magistrate's Court at Milimani
MCCOMMSU NO. E84 OF 2020
Jurisdiction invoked
First appellate jurisdiction over a ruling of the Chief Magistrate's Court; leave to appeal addressed by Hon. Justice On'gudi J in a Ruling of 30th June 2021

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, "West African Foodstuffs Co Ltd & 2 others v Kayser Investment Limited [2022] KEELC 742 (KLR)", Case Analysis (2022). Civil Appeal No E001 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/742/eng@2022-03-18

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