Floriculture International Limited v Central Kenya Limited & 3 others [1995] KECA 147 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a property owner's case because they used the wrong court procedure, confirming courts cannot hear matters outside their jurisdiction.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Originating Summons was properly taken out under Order 36 rule 3A of the Civil Procedure Rules
- 2.Whether the Court of Appeal may entertain the jurisdictional point raised for the first time on appeal
- 3.Whether the orders of the superior court made on a mention date were valid
Key legal issues
#Whether an Originating Summons under Order 36 rule 3A could sustain a claim disputing the validity of charges and seeking damages
No - the rule presupposes a valid mortgage and there is no power to award damages on an Originating Summons; the summons ought to have been struck out.
The reliefs specified under Order 36 rule 3A are all premised on the existence of a valid mortgage. Here the plaintiff's principal claim was that no valid mortgage existed, a matter raising serious contested questions of fact unsuitable for the Originating Summons procedure. Further, following Kenya Commercial Bank Ltd v Osebe, damages cannot be awarded on an Originating Summons, yet that was the very relief sought and entertained.
Whether a jurisdictional defect could be raised for the first time on appeal
Yes - the bar on raising new points on appeal does not apply to issues going to jurisdiction.
Although counsel for the first respondent conceded the superior court lacked jurisdiction, she argued the point was not raised below. Relying on Kenindia Assurance Co Ltd v Otiende, the court held that where the point raised for the first time on appeal goes to jurisdiction, the normal rule does not apply, since neither admission nor invitation can confer jurisdiction where none exists.
Whether orders made on a mention date, including a substantial amendment and indefinite extension of an ex parte injunction, were proper
The court condemned the procedure as repugnant to the administration of justice, though it did not need to rest its decision on it.
The case had been stood over for mention only, yet on that date the judge heard and allowed an oral application for substantial amendment, directions, and an indefinite extension of an ex parte injunction. Following Rahab Wanjiru Evans v Esso Kenya Ltd, a judge fixed for mention has no business determining substantive issues on that date unless the parties agree and submissions are heard.
Legal principles established
#- The Originating Summons procedure under Order 36 rule 3A presupposes a valid mortgage and cannot be used to dispute the validity of a charge or to claim damages.
- The normal rule that a point not raised in the High Court cannot be raised for the first time on appeal does not apply where the point goes to jurisdiction.
- The Originating Summons procedure is limited to simple matters and is not intended for determination of matters involving serious questions on contested facts.
- A judge hearing a matter fixed for mention may not determine substantive issues on that date absent the parties' agreement.
Court orders
#- 1.Appeal allowed and the ruling and order of the superior Court dated July 7, 1995 set aside
- 2.The amended Originating Summons struck out with costs
- 3.All orders made by the superior court set aside
- 4.First respondent to pay the appellant's costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1597 of 1994 (O.S.)
- Jurisdiction invoked
- Appeal with leave of the superior Court from its ruling and order
Relief refused
#Continuation of the Originating Summons proceedings
No jurisdiction existed for the Originating Summons as taken out under Order 36 rule 3A
Costs
The amended Originating Summons is struck out with costs and all the orders made by the superior court therein are set aside. The first respondent shall pay to the appellant its costs of this 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.
We, therefore, find that there was no jurisdiction to entertain the Originating Summons as taken out and it ought to have been struck out.
The very provisions of Order 36 rule 3A are predicated upon there being a valid mortgage and the reliefs specified in that rule are also predicated upon there being a valid mortgage.
But neither that admission nor the invitation can confer on the court jurisdiction when none exists.
The amended Originating Summons is struck out with costs and all the orders made by the superior court therein are set aside. The first respondent shall pay to the appellant its costs of this appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Amollo & 2 others v Obetto & 2 others (Environment and Land Appeal E003 of 2025) [2026] KEELC 3954 (KLR)[2026] KEELC 3954 (KLR)29 Jun 2026
- Amollo & 2 others v Obetto & 2 others (Environment and Land Appeal E003 of 2025) [2026] KEELC 3954 (KLR)[2026] KEELC 3954 (KLR)29 Jun 2026followed
Cite this brief
#Cite this brief
Caselaw, "Floriculture International Limited v Central Kenya Limited & 3 others [1995] KECA 147 (KLR)", Case Analysis (1995). Civil Appeal No. 121 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/147/eng@1995-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.