West African Foodstuffs Co Ltd & 2 others v Kayser Investment Limited [2022] KEELC 742 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Power of the court to render an interim ruling on an oral application while a fuller application was pending
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
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.
Whether the terms imposed (deposit of the decretal sum into an escrow account) exceeded or abused the trial magistrate's discretion
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
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.
Whether the appellants could urge grounds on the validity of the interlocutory and final judgments not contained in the memorandum of appeal
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
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.
Legal principles established
#- 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
#- 1.The Appeal vide Memorandum of Appeal dated the 25th January 2021 dismissed
- 2.The orders of the court issued on 11th November 2021 (limbs 1, 2, 3, 4 and 5) vacated and/or extinguished
- 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.The Escrow Account to be opened in the names of the advocates for the respective parties within 30 days
- 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.In default of the deposit, the Respondent to be at liberty to proceed with execution of the judgment
- 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.Costs of the Appeal awarded to the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.