Ganjoni Properties Limited v Al-riaz International Limited & 1 other
The bottom line
#Kenya's Court of Appeal struck down orders made against an occupant who was never heard, ruling courts must first resolve jurisdiction challenges before making any orders.
What this practically means
#Executive summary
#Key legal issues
#Priority of jurisdictional challenges
A jurisdictional challenge must be decided immediately once raised; the High Court erred in issuing further orders without determining the pending jurisdiction question, which must now be determined on a priority basis
Relying on the celebrated Lillian S case, the Court held that jurisdiction clothes a court with authority to determine disputes; without it, a court must put down its tools and any orders issued are futile. Because submissions on jurisdiction were already pending before the High Court, the Court declined to pre-empt the decision but directed that the issue be considered and determined on a priority basis.
Right to be heard / natural justice
The impugned orders were invalid because the learned Judge made them against the affected party, whose possession of the premises had been brought to his attention, without giving it an opportunity to be heard
It was common ground that before issuing the orders the Judge was told of the affected party's possession of the suit premises. That should have prompted him at the very least to give the affected party an opportunity to address him, since any orders affecting the premises would affect it. By failing to do so, he breached the rules of natural justice, rendering the exercise of discretion improper.
Interference with discretionary interlocutory orders
The appeal was an appeal against the exercise of discretion; the Judge's discretion was improperly exercised and the orders were set aside in their entirety
Guided by the Coffee Board principles, the Court may interfere where the judge misdirected himself or was clearly wrong and occasioned injustice. The Judge issued mandatory injunction-type orders based on ambiguous 'prevailing orders' without hearing the affected party and without determining the jurisdiction question; the circumstances were not clear and the discretion was thus improperly exercised.
Ambiguity of 'prevailing orders' as a basis for mandatory relief
The reference in the 14th December, 2017 order to 'prevailing orders' being maintained was ambiguous and could not, without hearing the parties, found mandatory relief
The Judge based his orders on limb 3 of the 14th December 2017 order that 'prevailing orders be maintained till the hearing date'. What those prevailing orders were could only be answered when the parties' respective positions were heard, especially given the numerous prior orders. The Court declined to say more to avoid pre-empting the pending application.
Legal principles established
#- A challenge to jurisdiction, once raised, must be addressed immediately before a court proceeds to determine the dispute
- An appellate court will not interfere with the exercise of judicial discretion unless the judge misdirected himself or was clearly wrong and occasioned injustice
- Where orders will adversely affect a third party known to be in occupation or interested, that party must be heard before the orders are made; failure to do so is a breach of natural justice
- Mandatory injunctions should as a general rule only be granted in clear circumstances
Court orders
#- 1.Set aside the orders dated 29th January, 2018 and 1st February, 2018 in their entirety
- 2.No order on costs - each party to bear own costs
- 3.Directive that the High Court consider and determine the issue of jurisdiction on a priority basis as soon as reasonably practicable
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C No. 158 of 2014
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over an interlocutory decision of the High Court (specific constitutional/statutory provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ganjoni Properties Limited v Al-riaz International Limited & 1 other", Case Analysis (2018). Civil Appeal No. 14 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/399/eng@2018-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.