Openda v Ahn (Civil Appeal 42 of 1981) [1982] KECA 59 (KLR)
The bottom line
#Kenya's Court of Appeal struck out most appeal grounds raising arguments never raised in the High Court, confirming you cannot save a weak case with new points on appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether 11 (later 14) grounds of appeal raising points not pleaded or canvassed in the High Court should be struck out on preliminary objection
- 2.What costs should follow the objection proceedings
Key legal issues
#Entitlement to raise a new point on appeal where it was not pleaded or canvassed at trial
An appellate court has discretion but will not allow a new point unless properly pleaded and the facts elicited below, save possibly for pure questions of construction of a document which was itself in evidence
The court reviewed the East African and English line of authority, from Girdhari Lal Vidyarthi through Warehousing and Forwarding to Visram & Karsan, establishing that new points should not be entertained unless the facts, if fully investigated, would have supported them. It applied that test ground by ground. However, it accepted Mr Khanna's submission that pure questions of interpretation of a pleaded and produced document could be entertained because no investigation of facts is required.
Whether interpretation of the agreement for sale (clause 9, clear title) could be raised on appeal
Yes; grounds 1 and 2 were allowed to stand as pure questions of construction of a pleaded document
The agreement was pleaded, annexed to the plaint and produced in evidence. Relying on Lord Watson's dictum in Connecticut Fire Insurance Co v Kavanagh as cited in the Warehousing case, the court held it competent and expedient to entertain a plea of law turning on construction of a document where the facts would not have required investigation. The objections to grounds 1 and 2 were accordingly dismissed.
Whether grounds raising impossibility of performance, mortgage difficulties and the wife's beneficial interest could be raised for the first time on appeal
No; such grounds were struck out as unpleaded and uncanvassed at trial
Impossibility of performance, the mortgage and the wife's half-interest were never pleaded nor made issues at trial, and no evidence was adduced on them. The court saw no justification for allowing them on appeal and struck out grounds 3, 4, 5, 7, 8, 9, 13, 14, 15 and 20. It noted the mortgage could have been discharged by the plaintiff out of the purchase price, further undermining the new plea.
Legal principles established
#- A new point not pleaded or canvassed below may only be raised on appeal if the facts, if fully investigated, would have supported it
Court orders
#- 1.Objection to grounds 1 and 2 dismissed; those grounds to stand
- 2.Grounds 3, 4, 5, 7, 8, 9, 13, 14, 15 and 20 of the memorandum of appeal struck out
- 3.Ground 6 allowed to stand
- 4.Ground 17 allowed to stand
- 5.Respondent awarded the costs of the objection proceedings, such costs to be the respondent's costs in the appeal in any event
- 6.Objection extended to include three further grounds of appeal substantially covered by the original notice
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Civil Case No 1193 of 1978
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over appeals from the High Court (interlocutory ruling on a preliminary objection in a pending appeal)
Relief refused
#Immediate hearing and determination of the appeal itself
The appeal was adjourned by consent to a date to be fixed after the ruling on the preliminary objection
Costs
Respondent awarded the costs of the objection proceedings, to be the respondent's costs in the appeal in any event: "such cost to be the respondent's costs in the appeal in any event, and we so order."
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.
although an appellate court has a discretion to allow an appellant to take a new point on appeal it will not do so if the matter had not been properly pleaded or if all the facts bearing on the new point have not been elicited in the court below
where an issue which has not been pleaded or canvassed is raised for the first time on appeal, it should not be allowed to be argued unless the evidence establishes beyond doubt that the facts, if fully investigated, would have supported the plea of the party seeking to raise the new issue
To recapitulate, the preliminary objection has succeeded to the extent that 10 of the 14 grounds of appeal objected to have been struck out
We consider that the respondent, whose objections have substantially succeeded, is entitled to the costs of the objection proceedings, such cost to be the respondent's costs in the appeal in any event, and we so order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Openda v Ahn (Civil Appeal 42 of 1981) [1982] KECA 59 (KLR)", Case Analysis (1982). Civil Appeal (High Court Civil Case No 1193 of 1978). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1982/59/eng@1982-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.