Securicor (Kenya) Ltd v EA Drapers Limited & another
The bottom line
#Kenya's Court of Appeal confirmed it can hear new legal arguments on appeal when based on documents both sides already agreed to, as long as no new claim is introduced.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave should be granted to file and argue two additional grounds of appeal (2A and 2B) not pleaded or argued at trial
- 2.Whether the proposed additional grounds raise pure questions of law on admitted facts and documents that may properly be entertained on appeal
Key legal issues
#Entertainment of a new point of law on appeal based on admitted documents
Where the documents were put in by consent, all agreed facts were before the court, and no further evidence is needed, a new point of law on construction may be entertained on appeal.
The court applied the Connecticut Fire Insurance Co v Kavanagh principle as followed in Donaghey v P O'Brien and in the predecessor Court of Appeal. Since exhibits 1 to 4 were consented documents requiring only interpretation, and the additional grounds raised no new cause of action, justice favoured allowing the amendment.
Discretion to allow additional grounds of appeal under Rule 44(1)
The discretion was exercised in favour of the appellant, allowing grounds 2A and 2B, with the amended grounds to be filed within seven days.
The appellant sought finality between the parties; the respondent conceded ground 2A and opposed only 2B. The court found the grounds arose from issues tried and the judgment below, and that no further evidence or pleading was required, so the discretion was exercised to allow the application.
Legal principles established
#- A new point of law raised for the first time in a court of last resort may be entertained in the interest of justice so long as it does not introduce a new cause of action.
Court orders
#- 1.Application allowed; grounds 2A and 2B included as additional grounds of appeal
- 2.Amended version of grounds of appeal to be filed within seven days from the date of the ruling
- 3.Costs of the amendment to be costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court at Mombasa
- Jurisdiction invoked
- Rule 44(1) of the Court of Appeal Rules (application for leave to amend grounds of appeal)
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.
I would exercise my discretion and allow this application, to include grounds 2A and 2B. The amended version of grounds of appeal is to be led within seven days from the date hereof.
In all fairness cost on the amendment should be costs in the appeal.
if a new point of law is raised for the rst time in a court of last resort it could be entertained in the interest of justice so far it does not introduce a new cause of action
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Securicor (Kenya) Ltd v EA Drapers Limited & another", Case Analysis (1987). Civil Appeal 67 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/88/eng@1987-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.