Air Alfaraj Limited v Raytheon Aircraft Credit Corporation & NAC Airways Limited
The bottom line
#Kenya's Court of Appeal dismissed Air Alfaraj's attempt to strike out an appeal, ruling that a party who approves a court order cannot later challenge it.
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 order appealed against, drawn with reference to the application under order 39 rather than as a preliminary objection, was irregular
- 2.Whether the applicant, having approved the order as drawn, was estopped from questioning its form or substance
- 3.Whether the record of appeal should be struck out
Key legal issues
#Form of the order following a jurisdictional objection raised within an interlocutory application
The order was properly drawn with reference to the order 39 application; drawing it as a preliminary objection ruling would offend order 20 rule 7(b) as read with rule 6(1)
The judge had heard a chamber summons under order 39 rules 1, 2, 3, 5 & 7 and section 3A. The jurisdictional objection was one of several objections to that application. Once jurisdiction was disposed of, the application remained to be heard on merits, so the order had to refer to the application within which the objection arose.
Estoppel by conduct of counsel who approved the order as drawn
Having approved the order as drawn, the applicant could not challenge its validity on appeal; approbating and reprobating is impermissible
Counsel for the applicant confirmed he approved the order as drawn. Following Sonko v Patel, such approval is an express representation accepting the order as correct in form and substance, on which the other party acted; it would be unjust to allow a departure from it.
Nature of a preliminary objection
A preliminary objection raises a pure point of law on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or discretion exercised
Adopting Mukisa Biscuit, the court held that without all facts, including the contract, being before it, the court below could not have determined jurisdiction by way of preliminary objection; raising the issue as an objection to the application was proper.
Legal principles established
#- An order drawn after hearing an objection within an application must refer to that application; it cannot be drawn as if it emanated from a preliminary point of law simpliciter
- A party who approves a decree or order as drawn is estopped from later questioning its form or substance
- Counsel must not approbate and reprobate - approving an order then challenging it on appeal is a departure from expected conduct at the Bar
Court orders
#- 1.Application dismissed with costs assessed at Shs 20,000/= payable within 30 days failing which execution may issue
- 2.The appeal may now proceed to hearing
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. 1611 of 1998
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the record of appeal from the High Court (ruling of 8th October 1998)
Relief refused
#Striking out/dismissal of the record of appeal
The order as drawn correctly reflected what took place below; the applicant approved it and was estopped from challenging it
Costs
Application dismissed with costs assessed at Shs 20,000/=, to be paid within 30 days failing which execution may issue
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.
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.
The only way, in the circumstances, would have been to refer to the application within which the objection was heard for which purposes the order would have to refer to the application.
we hold that the first respondent is estopped by his conduct from now questioning the form or substance of the decree which is annexed to the memorandum of appeal.
We dismiss this application with costs which we assess at Shs 20,000/= and we order that the same be paid within the next 30 days failing which execution may issue. The appeal itself may now proceed to hearing.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Air Alfaraj Limited v Raytheon Aircraft Credit Corporation & NAC Airways Limited", Case Analysis (2000). Civil Appeal (Application) No. 29 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/432/eng@2000-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.