Fresco Bushlands (K) Limited v Warsame Mohamed Issak & 4 others [2018] KECA 291 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot appeal a ruling that granted you exactly what you asked for.
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 appeal, which sought inter alia affirmation of the trial court's orders, disclosed any grievance against the ruling appealed from
- 2.Whether matters outside the Notice of Appeal and outside the impugned ruling could be litigated on appeal
- 3.Whether there were adverse orders against the appellant amenable to being set aside
Key legal issues
#Scope of appellate jurisdiction defined by the Notice of Appeal
An appellant cannot raise issues on appeal that fall outside the Notice of Appeal and outside the impugned decision; the challenge to proprietary rights of Vital-Bioenergy was not an issue in the application or the ruling.
The Court found the appellant's real grievance concerned proprietary rights and agency, issues neither raised in the interlocutory application nor addressed in the ruling. Since appellate jurisdiction is confined by the Notice of Appeal, and that Notice did not specify the part of the ruling appealed against, those matters could not be introduced through the back door.
Entitlement to appeal an order granted in one's own favour
A party who obtained the only order it sought cannot appeal that decision; allowing such an appeal would only set aside the injunction in the appellant's own favour.
The impugned ruling allowed the appellant's application and granted the injunction it sought, directing parties to stay within their boundaries. The Court was unable to identify any grievance, since no adverse orders existed against the appellant. Issues of proprietary rights were reserved for the pending main suit.
Legal principles established
#- The jurisdiction of the Court of Appeal on appeal is delineated by the Notice of Appeal; matters outside the Notice of Appeal and not part of the impugned decision cannot be litigated through the back door.
- A Notice of Appeal stating an appeal is against part of a ruling must specify which part is being appealed against.
- Where the only order sought in an interlocutory application is granted in the applicant's favour, there are no adverse orders capable of being set aside on appeal by that applicant.
Court orders
#- 1.Appeal dismissed
- 2.No orders as to costs, the appeal not having been defended
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment & Land Court at Malindi
- E & LCC No. 5 of 2015 (ruling of 16th September 2016)
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Notice of Appeal against an interlocutory ruling of the Environment & Land Court
Relief refused
#Prayers in the Memorandum of Appeal, including affirming the orders in ELC Civil Case No. 5 of 2015 and setting aside parts of the ruling
The ruling granted the only order the appellant sought; the ruling in ELC Civil Case No. 5 of 2015 was not before the Court and the Notice of Appeal did not specify which part of the ruling was being appealed against
Costs
No orders as to costs, the appeal not having been defended
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.
The jurisdiction of this Court on appeal is delineated by the Notice of Appeal. Matters that are outside the Notice of Appeal, and which are not part of the impugned decision cannot be litigated through the back door.
We hold the view that this appeal is totally devoid of merit. The same is hereby dismissed with no orders as to costs as the same was not defended.
There are no adverse orders against the appellant in the ruling appealed against which are amenable to being set aside.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fresco Bushlands (K) Limited v Warsame Mohamed Issak & 4 others [2018] KECA 291 (KLR)", Case Analysis (2018). Civil Appeal No. 107 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/291/eng@2018-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.