Coast Professional Freighters Limited v Welsa Bange Oganda & 2 others
The bottom line
#Supreme Court rejects attempt to introduce new arguments not raised in Court of Appeal.
What this practically means
#The Supreme Court of Kenya dismissed an application to add new grounds of appeal. The applicant wanted to raise issues that were not part of the original appeal in the Court of Appeal. The Court said this would be unfair to the other side because they had no chance to respond. The Court also confirmed it had the power to decide the application itself, even though the main appeal's jurisdiction was challenged. The applicant must pay the costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application to file additional grounds of appeal and a supplementary record of appeal should be granted.
- 2.Whether this Court has jurisdiction to entertain the application.
Key legal issues
#Whether the Supreme Court has jurisdiction to entertain an application to file additional grounds of appeal when the substantive appeal's jurisdiction is challenged.
The Court held that the challenge to jurisdiction over the substantive appeal is premature in the context of this application; the Court has jurisdiction to determine the application itself.
The 1st Respondent argued that the Court lacked jurisdiction to entertain the substantive appeal, and therefore also lacked jurisdiction over the application. The Court rejected this, stating that the jurisdiction question relates to the power to determine the application, not the substantive appeal. The Court proceeded to consider the application on its merits.
Whether the Applicant should be allowed to file additional grounds of appeal that were not part of the appeal in the Court of Appeal.
The Court held that allowing such additional grounds would be prejudicial to the Respondents as they were not part of the appeal in the Court of Appeal and the Respondents had no opportunity to respond.
The Applicant sought to add grounds crystallizing from the dispute, including that the High Court erred by granting remedies not sought against the Applicant and that the order returning property amounted to unjust enrichment. The Court found these were new grounds not taken on appeal in the Court of Appeal, and granting them would prejudice the Respondents.
Legal principles established
#- New grounds of appeal not raised in the Court of Appeal cannot be added later if they prejudice the respondent.
- The Supreme Court has jurisdiction to determine an application even if the substantive appeal's jurisdiction is challenged.
- Allowing new grounds that were not part of the lower court appeal is prejudicial and will be dismissed.
- A party must raise all appeal arguments in the Court of Appeal to preserve them for the Supreme Court.
- Costs are awarded against the party that brings a meritless application.
Court orders
#- 1.The application dated 2 June, 2017 is hereby dismissed.
- 2.The Applicant shall bear the costs of this application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Leave to file additional grounds of appeal and a supplementary record of appeal
Granting the orders sought would be prejudicial to the Respondents as it brings before this Court issues not taken on appeal in the Court of Appeal.
Costs
The Applicant shall bear the costs of this application.
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.
The application dated 2 June, 2017 is hereby dismissed;
The Applicant shall bear the costs of this application.
Granting the orders sought by the Applicants would be prejudicial to the Respondents as it brings before this Court issues not taken on appeal in the Court of Appeal.
Although the 1st Respondent correctly quotes the dictum on jurisdiction, the conclusion that this Court lacks jurisdiction is premature since the jurisdiction in question is that in respect of the Courts’ power to determine this application and not the substantive appeal.
Key timeline
#Practical implications
#Strategic filing of appeal grounds
Ensure all potential grounds of appeal are raised in the Court of Appeal. The Supreme Court will not permit new grounds that were not part of the original appeal, as they prejudice the respondent. File comprehensive grounds early to avoid dismissal of later applications.
Appeal strategy and finality
When involved in litigation, instruct your lawyers to include all possible arguments at the first appeal stage. The Supreme Court's ruling reinforces that new issues cannot be introduced later. This promotes finality and fairness, so prepare your case thoroughly in the Court of Appeal.
Know your appeal rights
If you are appealing a court decision, you cannot introduce completely new arguments at the Supreme Court that were not part of your case in the Court of Appeal. The Court values fairness and will not allow new issues to be sprung on the other party. Raise all your points early.
Frequently asked questions
#Can I add new grounds of appeal in the Supreme Court of Kenya?+
No, if those grounds were not part of your appeal in the Court of Appeal. The Supreme Court will dismiss such applications as they are prejudicial to the other party who had no chance to respond.
What happens if I try to introduce new evidence in the Supreme Court of Kenya?+
The Supreme Court can reject new evidence or grounds if they were not raised in the lower courts. You must present all your arguments at the earliest opportunity to avoid dismissal.
Does the Supreme Court of Kenya have jurisdiction to hear an application if the main appeal's jurisdiction is challenged?+
Yes, the Court can decide on the application itself even if the substantive appeal's jurisdiction is contested. The jurisdictional challenge to the main appeal is separate and does not block the Court from ruling on procedural applications.
How to file additional grounds of appeal in the Supreme Court of Kenya?+
You must seek leave of the Court. However, the Court will only grant leave if the new grounds were part of the appeal in the Court of Appeal and do not prejudice the respondent. Consult a lawyer for proper procedure.
Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- MM & another v Kenneth Kamichia M’ikirima & 4 others [2021] KEELC 2628 (KLR)[2021] KEELC 2628 (KLR)14 Jul 2021applied
- RNM v RN & another [2021] KEELC 4623 (KLR)[2021] KEELC 4623 (KLR)27 Jan 2021followed
- Richard Kipkemei Limo v Hassan Kipkemboi Ngeny & 4 others [2020] KECA 87 (KLR)[2020] KECA 87 (KLR)4 Dec 2020
- Richard Kipkemei Limo v Hassan Kipkemboi Ngeny & 4 others [2019] KECA 456 (KLR)[2019] KECA 456 (KLR)25 Jul 2019applied
Cite this brief
#Cite this brief
Caselaw, "Coast Professional Freighters Limited v Welsa Bange Oganda & 2 others", Case Analysis (2019). Petition (Application) 4 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/40/eng@2019-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.