Trade Bank Limited (In Liquidation) v L. Z. Engineering Construction Limited & Another [2000] KECA 393 (KLR)
The bottom line
#Kenya's Court of Appeal blocked an appeal because the party never challenged the earlier ruling — skip one stage and you lose the right to 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 the Judge of Appeal should disqualify himself from determining the application.
- 2.Whether the intended appeal from the final decree is barred by section 68 of the Civil Procedure Act because no appeal was preferred from the preliminary decree of 28 November 1997.
- 3.Whether the intended appeal is barred by res judicata by reason of the findings already made in the preliminary decree of 28 November 1997.
- 4.Whether, the intended appeal being bound to fail, the application should be dismissed with costs.
Key legal issues
#Whether an intended appeal from a final decree is barred where no appeal was preferred from the earlier preliminary decree.
Yes. The intended appeal is barred by section 68 of the Civil Procedure Act.
The judge identified the preliminary decree of 28 November 1997 as the earlier determination in the suit. No appeal was preferred against that preliminary decree. On that footing, he held that an appeal directed at the subsequent final decree is barred by section 68 of the Civil Procedure Act. He treated this as an independent ground, separate from res judicata, on which the intended appeal was bound to fail, and it informed his decision to dismiss the application with costs.
Whether the intended appeal is barred by res judicata.
Yes. The intended appeal is barred by res judicata because of the findings already made in the preliminary decree of 28 November 1997.
The judge found that the matters the intended appeal would reopen had already been determined in the preliminary decree of 28 November 1997. Invoking Mburu Kinyua v. Gachimi Tuti [1978] KLR 69, he held the intended appeal was also barred by res judicata. This operated as a further, independent ground of bar alongside the section 68 Civil Procedure Act point, and together with the reasons in his ruling that morning it justified dismissing the application with costs.
Whether the Judge of Appeal should disqualify himself from hearing the application.
No application for disqualification was made and no material was placed before the court; had the issue been taken, the judge's decision on it in the earlier application would have applied.
The judge recorded that no application for his disqualification had been made in the application before him and that no material, by consent or otherwise, had been placed before him to enable him to decide such an issue. He indicated that if the point had been taken, his decision on the same issue in the earlier application, ruled on that morning, would apply. The point was therefore not argued and was not determined on the merits.
Whether the application should be dismissed because the intended appeal is bound to fail.
Yes. The application was dismissed with costs.
Beyond the two procedural bars, the judge concluded that the intended appeal had no prospect of success on the grounds he identified. He then coupled those reasons with those given in his ruling delivered the same morning in Civil Application No. NAI 115 of 2000 and dismissed this application with costs. The dismissal is the operative order; nothing in the ruling grants leave or any extension enabling the intended appeal to proceed.
Legal principles established
#- Where no appeal has been preferred against a preliminary decree, an intended appeal from the subsequent final decree is barred by section 68 of the Civil Procedure Act.
- An intended appeal from a final decree is barred by res judicata where the findings it seeks to challenge were already made in a preliminary decree.
- An application that would enable an intended appeal which is bound to fail ought to be dismissed with costs.
Court orders
#- 1.The application was dismissed with costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Not stated in the extract. The ruling shows a single Judge of Appeal determining an interlocutory application to the Court of Appeal concerning an intended appeal from a final decree; no constitutional or statutory provision establishing the application is cited in the portion of the ruling provided.
Relief refused
#Relief enabling the intended appeal from the final decree to proceed (the exact prayers are not set out in the extract).
The intended appeal was barred by section 68 of the Civil Procedure Act, no appeal having been preferred from the preliminary decree of 28 November 1997, and was in any event barred by res judicata; the judge concluded it was bound to fail.
Costs
The application was dismissed with costs.
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.
No appeal having been preferred from the preliminary decree of 28 November 1997, an appeal from the final decree as is intended is barred by section 68 of the Civil Procedure Act
The intended appeal is also barred by res judicata because of the findings already made in the preliminary decree of 28 November 1997: See MBURU KINYUA V. GACHIMI TUTI [1978] KLR 69.
No application has been made before me in this application for my disqualification. Nor has any material been placed before me, by consent or otherwise, to enable me to decide on such an issue.
For the reasons above stated in addition to those given in my ruling delivered this morning in Civil Application No. NAI 115 of 2000 KAPLAN & STRATTON V. L.Z. ENGINEERING CONSTRUCTION LTD & 2 OTHERS, I also dismiss this application with costs.
Issues in the judgment
#The number of the application determined by this ruling is not stated anywhere in the extract; the only case number appearing is that of the companion application decided the same morning.
The extract opens mid-ruling and omits the header, the parties' procedural capacities and the prayers sought; the parties and the nature of the relief are inferred from the title of the companion application.
The court below, the case number and the date of the final decree under challenge are not identified; only the date of the preliminary decree appears.
Two additional respondents are referred to only as '2 OTHERS' and are not named in the extract.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Trade Bank Limited (In Liquidation) v L. Z. Engineering Construction Limited & Another [2000] KECA 393 (KLR)", Case Analysis (2000). Not stated in the extract (companion application to Civil Application No. NAI 115 of 2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/393/eng@2000-08-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.