Kenya Power & Lighting Company Ltd v Karuri Hotels Limited & another [2002] KECA 214 (KLR)
The bottom line
#Kenya Power lost its appeal because you cannot attack a court order you never appealed against or raise arguments you never made in the lower court.
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 appellant could, in an appeal brought only against the ruling of 30 January 2001, challenge the order of 27 November 2000 permitting the suit to proceed as a representative suit, from which no appeal had been preferred.
- 2.Whether a point that was not argued before the superior court and was not dealt with in the ruling appealed from may be taken on appeal.
- 3.Whether the appeal should be allowed or dismissed.
Key legal issues
#Whether an appellant may challenge, in an appeal against the ruling of 30 January 2001, a separate order of 27 November 2000 (the representative-suit order) from which no appeal was filed.
No. The representative-suit order was not part of the decision appealed from; no appeal was preferred against it; any attempt to challenge it in this appeal would be incompetent.
The Court traced the procedural history: the order permitting a representative suit, and an injunction, were made on 27 November 2000. The appellant entered appearance on 6 December, when it knew or ought to have known of that order, yet filed no appeal against it. The notice of appeal, filed on 1 February, targeted only the ruling of 30 January 2001, which did not deal with the representative order. The point was therefore outside the scope of the appeal, and pursuing it would be incompetent.
Whether a point not argued before the superior court may be raised on appeal.
No. It is unkind and unjustified to take from the ruling a point that was not argued below; the representative-suit question was neither addressed nor decided in the ruling of 30 January 2001.
The appellant had raised a preliminary point on jurisdiction, the availability of the orders sought and the unchallengeability of levies and decisions; that point was heard and decided. No submissions were made on the representative character of the suit, so the Commissioner did not deal with it. The Court of Appeal held that attacking the ruling on a ground never argued below was unjustified, confirming that appellate argument must correspond to what was actually argued and decided below.
Legal principles established
#- An appeal is confined to the decision from which it is brought: a party cannot, in an appeal against one ruling, attack a different order from which no appeal was preferred, and any attempt to do so is incompetent.
- A point that was not argued before the superior court, and which does not form part of the ruling appealed from, cannot be taken for the first time on appeal.
Court orders
#- 1.The appeal is dismissed.
- 2.The appellant to pay the costs of the appeal, the appeal having been dismissed with costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 584 of 2000
- Jurisdiction invoked
- Not expressly cited in the judgment; the Court records only that 'This is an appeal (with leave) by the first defendant from a decision of the superior court (Mrs. Khaminwa, a Commissioner of Assize) given on 30 January, 2001.'
Relief refused
#The appellant's attempt, on appeal, to challenge the order of 27 November 2000 allowing the plaintiffs to sue in a representative suit.
The representative-suit order was not part of the decision of 30 January 2001 appealed from, and no appeal had been preferred against the order of 27 November 2000; any attempt to challenge it would be incompetent.
Costs
The appeal was dismissed with costs, i.e. the appellant (Kenya Power & Lighting Company Ltd) to pay the respondents' costs of the appeal. Verbatim: 'this appeal fails and is 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.
For the reasons above stated, this appeal fails and is dismissed with costs.
That being so, the appeal directed against a representative order having been made on 27 November was not addressed and any attempt to do so would be incompetent.
It is therefore a little unkind and unjustified for this point to be taken from the ruling which is the subject of the appeal when the point was not argued before the superior court.
Issues in the judgment
#The cause header places the appeal in the Court of Appeal at Mombasa, but the judgment concludes 'Dated and delivered at Nairobi this 22nd day of February, 2002' - a discrepancy in the stated seat of delivery.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lighting Company Ltd v Karuri Hotels Limited & another [2002] KECA 214 (KLR)", Case Analysis (2002). Civil Appeal No. 54 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/214/eng@2002-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.