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Court of AppealPartially AllowedCivil Application No. NAI 243 of 2011 (UR 157/2011)

Ushirika Tiles & Builders Co. Limited v Multimedia University College of Kenya [2012] KECA 234 (KLR)

Court of Appeal
3 February 2012
776 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed a contractor to value and remove its building materials from Multimedia University's site, even granting relief not formally requested.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Nairobi (Omolo, Karanja and Rawal, JJ.A.) on a notice of motion dated 19th October 2011 by Ushirika Tiles & Builders Co. Limited, brought under Rules 2, 5(2)(b) and 47(1) and (2) of the Court of Appeal Rules 2010. The applicant sought an injunction pending its intended appeal against the ruling of Mwera J in HCCC No. 351 of 2011 delivered on 5th October 2011, seeking to restrain the respondent, Multimedia University College of Kenya, from handing over the construction sites to another contractor before the applicant's works and supplies were valued, and from dealing with the proceeds of an Equity Bank performance bond. At the hearing the matter narrowed considerably: the dispute was essentially about allowing the applicant to remove its unused building materials from the site after valuation, which the respondent conceded would cause it no prejudice. Both prayers were largely spent or moot - the bond had lapsed after 12 months and the project had already been handed to another contractor before valuation. Invoking Sections 3A and 3B of the Appellate Jurisdiction Act, the court granted orders that a qualified valuer, with the respondent's participation, value the materials and works within 14 days, after which the applicant may remove its materials, with costs of the motion in the intended appeal. The substantive suit remains pending before the High Court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an injunction should issue restraining the respondent from handing over the construction sites to another contractor before the applicant's works and supplies are valued or quantified, pending appeal
  2. 2.Whether the respondent should be restrained from demanding, receiving or dealing with the proceeds of the performance bond issued by Equity Bank Ltd, pending appeal
  3. 3.Whether, in the interest of justice, the court should order valuation of the materials and works on site and permit the applicant to remove its materials, even though removal was not specifically prayed for

Key legal issues

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01

Whether the Court of Appeal can grant relief not specifically pleaded in an application pending appeal

Holding

Yes. Invoking Sections 3A and 3B of the Appellate Jurisdiction Act, the court granted an order for valuation and removal of materials that counsel agreed had not been specifically prayed for, because justice and expediency required it and the respondent conceded no prejudice would result.

Reasoning

Counsel agreed the applicant had not specifically prayed for removal of materials from the site. The court nonetheless held that, in the interest of justice and expediency, and invoking its residual powers under Sections 3A and 3B of the Appellate Jurisdiction Act, it could order valuation and removal, particularly as the respondent conceded it would suffer no prejudice. This was a discretionary, case-management outcome rather than an announcement of a new binding rule.

p. 2
02

Effect of effluxion of time on a performance bond

Holding

A performance bond valid for 12 months that has lapsed by effluxion of time cannot be enforced, rendering the related prayer moot.

Reasoning

Both counsel agreed the Equity Bank performance bond was valid for 12 months and had since lapsed. Because an expired bond cannot be enforced, the prayer seeking to restrain dealings with its proceeds was moot. Similarly, since the project had already been handed to another contractor before valuation, part of prayer 2 was also moot. These findings rest on counsel's consensus and the facts, not on contested argument.

p. 2

Legal principles established

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  • Under the inherent jurisdiction conferred by Sections 3A and 3B of the Appellate Jurisdiction Act, the Court of Appeal may grant orders not specifically sought by a party where the interest of justice and expediency so demand.

Court orders

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  1. 1.That the building materials belonging to the applicant lying at the respondent's site and any work it may have carried out be valued by a qualified valuer with the participation of the respondent within 14 days from the date of the ruling
  2. 2.Upon the said valuation, the applicant be at liberty to remove the said materials from the site
  3. 3.The costs of the motion shall be in the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court at Nairobi
HCCC No. 351 of 2011
Jurisdiction invoked
Rules 2, 5(2)(b) and 47(1) and (2) of the Court of Appeal Rules 2010, read with Sections 3A and 3B of the Appellate Jurisdiction Act

Relief refused

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Prayer 3 - restraint on dealing with the proceeds of the Equity Bank performance bond

The bond was valid for 12 months and has lapsed by effluxion of time; it cannot be enforced and the prayer is moot

p. 2

Prayer 2 (in part) - restraint on handing over the sites to another contractor before valuation

The project had already been handed over to another contractor before the requested valuation was done, rendering that part of the prayer moot

p. 2

An injunction in the terms sought in the notice of motion

The specific prayers had been spent or had become moot; the court instead granted substantive orders for valuation and removal of materials under its inherent powers

p. 2

Costs

The costs of the motion shall be in the intended appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the building materials belonging to the applicant lying at the respondent's site and any work it may have carried out be valued by a qualified valuer with the participation of the respondent within 14 days from the date hereof.
p. 2Final orders - valuation of materials and works
Upon the said valuation, the applicant be at liberty to remove the said materials from the site.
p. 2Final orders - removal of materials
Although the prayer for removal of the building materials is not specifically sought, in the interest of justice and expediency and in light of the provisions of Sections 3A and 3B of the Appellate Jurisdiction Act, we find it mete and just to grant the following orders
p. 2Inherent jurisdiction to grant relief not specifically prayed for
The costs of the motion shall be in the intended appeal.
p. 2Costs order

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ushirika Tiles & Builders Co. Limited v Multimedia University College of Kenya [2012] KECA 234 (KLR)", Case Analysis (2012). Civil Application No. NAI 243 of 2011 (UR 157/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/234/eng@2012-02-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.