The Commercial Case Law Index is a collection of judgments from African countries on topics relating to commercial legal practice. The collection aims to provide a snapshot of commercial legal practice in a country, rather than present solely traditionally "reportable" cases. The index currently covers 400 judgments from Uganda, Tanzania, Nigeria, Ghana and South Africa.
Get started on finding judgments that are relevant to you by browsing the topic list on the left of the screen. Click the arrows next to the topic names to reveal a detailed list of sub-topics. Most judgments are accompanied by a short summary written by subject-matter expert postgraduate students from the University of Cape Town.
The dispute centered on whether the decision by the Land Disputes Tribunal (the tribunal) was marred by irregularities due to the absence of proper assessor involvement.
The first question was whether it was necessary to record the opinion of the assessors even when they were in agreement with the chairman of the tribunal. The court asserted that the ‘unclear involvement of assessors in the trial renders such trial a nullity.’ It also stated that it was mandatory for the opinion of the assessors to be on record. It therefore reasoned that there was a serious irregularity in the trial as the assessors had not given their opinion.
Regarding the effect of the change of assessors during the trial the court averred that this was in contravention of section 23(3) of the act as the provision did not contemplate a complete change of all assessors in its latitude.
The above was tied by the fact that the assessors had not been present throughout the whole trial, conduct which resulted in the tribunal not being properly constituted as required by s 23(1) and (2) of the act.
The final question therefore was whether the above could be cured. The court reasoned that the omissions went to the root of the matter and resulted in a failure of justice. It thus concluded that the trial was vitiated by the irregularities and nullified the tribunal’s proceedings.
The matter involved a question of competency of appeal regarding a land dispute.
The court referred to section 47(1) of the Land Disputes Courts Act which allows a person, when aggrieved by the decision of the High Court, to appeal to the Court of Appeal provided they have been granted leave in accordance with the Appellant Jurisdiction Act.
The court reasoned that as there was no valid and surviving leave to appeal, the appeal was incompetent. It considered this failure to comply with a mandatory step in the appeal process as fatal to the appeal and therefore struck out the appeal fo incompetence
The matter involved a review application against an appeal court’s decision granted against the applicant.
The main question revolved around whether the grounds for a review application were satisfied. The court relied on rule 66(1) which states that a review application is entertained only if the decision under challenge ‘was based on a manifest error on the face of the record resulting in the miscarriage of justice.’ It also relied on the Charles Barnabas v Republic, Criminal Application No. 13 of 2009 and Chandrakant Joshughai Patel v Republic,  TLR 218 cases for the authority that a review does not challenge the merits of a decision but rather irregularities in the process towards the decision hence why it is not something that can be proved by a long-drawn process of learned argument. In addition, persuasive authority was drawn from the National Bank Of Kenya Limited v Ndungu Njau  eKLR case as authority for the proposition that a review cannot simply be raised on the basis that a different court would have reached a different conclusion on the same facts nor because the court misinterpreted the provisions of the law.
In application, the court reasoned that the grounds proffered by the applicant which included failure to prove lawful occupation of disputed land or the fact of that the disputed land belonged to the Village Council were in fact grounds of an appeal since they went into the merits of the decision.
The court therefore concluded that a review could not be raised on grounds of appeal and consequently struck out the application.
The matter involved an appeal against the decision of the High Court, a decision the appellant contends was arrived at under error of procedural law.
The main issue was whether the decision of the lower court was defective for its failure to afford the appellant her right to be heard. The court relied on case law to establish that it is necessary to afford a party a fair hearing upon making an adverse decision. It accepted the position in Scan - Tan Tours Ltd v the Registered Trustee of the Catholic Diocese of Mbulu Civil Appeal No. 78 of 2012 that when an issue that is pivotal to the whole case is introduced the parties should be given a chance to address the matter before the court. In addition, the court relied on the Rukwa Auto Parts and Transport Ltd v Jestina George Mwakyoma Civil Appeal No. 45 and Abbas Sherally and Another v Abdul Fazalboy Civil Application No. 33 of 2002 cases as authority for the proposition that failure to allow for the right to be heard constituted a breach of natural justice, a fundamental constitutional right.
The court reasoned that the trial court had failed to uphold the appellant’s right to be heard when it arrived at its decision and therefore violated a constitutional right. Hence, the court concluded that the decision could not be allowed and consequently nullified the impugned decision.
The matter involved a dispute over an order of suit property sale as a remedy for breach of a loan agreement granted by the trial court against the appellant.
The first question was whether the responded had paid the whole stipulated loan amount to the appellant. Assessing the evidence in the record from the trial court, the court reasoned that the trial court’s assessment had failed to evaluate crucial evidence that showed doubt in the respondent’s claim that the whole stipulated amount had been paid. The court thus concluded that the evidence indicated that the responded had failed to fully honor its performance obligation. As a result, the responded could not pursue the remedy of obliging the appellant to transfer the property for failure to repay the loan.
The second issue concerned the right to mesne profits (i.e. profits received by tenant in wrongful possession and which are recoverable by the landlord) by the appellant and the amounts due. The court did not dwell much on the question of entitlement, instead accepting the trial court’s finding of indisputable occupation and rental collection by responded as a basis together with the fact that responded could not justify the occupation.
The court thus concluded that mesne profits were owed but order that they be set-off to the amount of the loan that the appellant still owed. The decision of the trial court was therefore set-aside and appeal allowed.
The appellant sued the respondent for the allegedly unpaid balance of his retrenchment package. Proceedings at the High Court were adjourned several times and occurred before multiple presiding officers before a final judge made an order against him.
Noticing irregularities on the record of appeal, the appellate court focused on the competence thereof rather than the merits. The trial judge that made the order had failed to observe the relevant provisions of the Civil Procedure Code by neglecting to place on record the reasons why the matter had fallen unto his lap following several adjournments. The case law on the scope of this rule accounts for its importance in terms of judicial integrity and transparency. Moreover, the decree on record had been duly signed by neither the learned judge, nor the Deputy Registrar, as required by law.
These irregularities led the appellate court to exercise its revisional purview under section 4(2) of the Appellate Jurisdiction Act to quash and set aside the High Court judgment, before remitting the matter to the same forum for a competent judge to adjudicate the matter de novo (afresh). No order was made as to costs.
The plaintiffs instituted a land suit against the defendant praying the court declare that the defendant wrongly demolished the Madrassa building without any authority or order from the authorities. On the other side the defendant filed a written statement of defence stating that the suit was bad in law and ought to be dismissed, for lack of a paragraph invoking the court’s original jurisdiction, contrary to a requirement in law. Additionally, the defendant stated that the monetary claim pleaded was based on general damages and the court had no jurisdiction to entertain the suit.
The main issue determined by the court was whether the court had pecuniary jurisdiction to entertain the suit.
The court held that it was a mandatory requirement under Order VII Rule 1 (j) of the Civil Procedure Code that a plaint should contain a statement on the monetary value of the subject matter. This was not only for the purposes of determining courts' pecuniary jurisdiction, but also for assessing the court fees. Therefore, the failure by the plaintiffs to indicate in the plaint a statement of the value of the subject matter of the suit had an effect on both the jurisdiction and the court fees.
To conclude the court held that it had no jurisdiction and thus had no need to proceed on and to deliberate on other points of the preliminary objection as its hands were tied.
The appellant appealed the decision of the trial court to rely on an affidavit of a court process server, having held that service was properly done. The prime issue for determination was whether the appeal was meritorious.
Order V Rule 16 of the Civil Procedure Code provides that where the serving officer delivers or tenders a copy of summons to the defendant personally or to an agent or other person on his behalf he shall require that person to sign an acknowledgement of service, if refuses to sign the acknowledgement the serving officer shall leave a copy thereof with him and return the original together with an affidavit stating that the person refused to sign the acknowledgement) that he left a copy of the summons with such person and the name and address of the person (if any), by whom the person on whom the summons was served was identified.
The court held that these specifications were not indicated in the process server's affidavit and the trial court never bothered to establish and ascertain if the service was properly done to the appellant to accord her the right to be heard.
The decision of the trial court giving rise to this appeal could not be allowed to stand on account of being arrived at in violation of the constitutional right to be heard. In the result the appeal was granted.
The essence of the suit was an alleged unjustified refusal by the first defendant to berth resulting in alleged loss to the plaintiff and attaching demurrage charges.
The issue was whether the first defendant deliberately refused to berth a ship, and the court found in the affirmative. The court went on to look at if the refusal was justified. The court found that the master’s refusal to berth was based on unfounded grounds resulting in a two week delay. It was on that basis that the court held that the first and second defendants had not been wrongly sued.
The other issue was whether there was delay in offloading the consignment and whether the plaintiff suffered economic loss. These losses were in a form of demurrage charges, drop in sales as a result of closure of the factory, salaries to workers and bank charges. The court relied on the principle of general damages which states that damages in law presumes follow from the type of wrong complained of. General damages do not need to be specifically have been sustained.
In the result, the suit succeeded and the plaintiff was awarded damages.
The plaintiff won a tender for the supply of various medical supplies and equipment to be distributed by the first defendant. The framework agreement specified that the delivery thereof depended on ‘call off orders’, which were written instructions issued by the first defendant requiring the plaintiff to deliver stipulated numbers of medical supplies on specified dates.
When the first defendant unexpectedly deferred an order for additional supplies, the plaintiff incurred significant unforeseen costs with respect to the storage and security of the delayed goods. The plaintiff therefore instituted a claim against the first defendant for breach of contract.
The issues were common cause. First, whether the order of the goods as agreed was indeed deferred by the defendant. Secondly, whether the defendant delayed its payment for the goods delivered under the contract. These issues were simultaneously dispensed with, the court quickly finding on the evidence before it that the answer two both questions was affirmative.
The third issue, in light of this finding, was whether the defendant’s conduct amounted to a breach. This was also answered in the affirmative as the alterations made by the defendant were a departure from the specified dates and quantities required by the contract’s call off order protocol.
The establishing of loss on the part of the plaintiff to found its claim for damages emerged fourthly. That the record clearly demonstrated the costs incurred by the plaintiff – in the shape of storage and security fees, bank interests and charges from the manufacturer for delayed acceptance of goods – rendered this issue swiftly resolvable by the court.
The fifth issue concerned the determination of relief. The plaintiff was awarded a penalty for delayed payments and further general damages.
Judgment was accordingly entered for the plaintiff.
The issue was whether the eviction of the plaintiff from her house was a result of any wrongful and/or fraudulent order by the defendant.
The plaintiff's suit was founded on the tort of misfeasance in public office. The tort of misfeasance in public office had two forms, namely (i) cases where a public power was exercised for an improper purpose with the specific intention of injuring a person or persons, and (ii) cases where a public officer acted in the knowledge that he had no power to do the act complained of and that it would probably injure the claimant
The court held that the plaintiff had to prove that the first defendant exercised his power in execution of the decree in the matter for an improper purpose with the specific intention of causing injury to the plaintiff.
The plaintiff however, as held by the court, failed to discharge her burden of proof required of her that the first defendant made any wrongful or fraudulent order resulting into evection of the plaintiff from her house in execution of a decree in case. Simply stated, the evidence led by the plaintiff was too insufficient to discharge a burden of proof on the tort of misfeasance in public office.
In the result, the plaintiff's evidence alleging fraudulent acts fell short of the standard required and the suit was dismissed.
The applicant filed an application for correction of arithmetical error from a consent settlement order. The respondent argued that a party seeking to have an arithmetical or clerical error corrected as it were in this application must do so within sixty days from the date of the decree sought to be corrected.
The question for determination by the court in this application was whether that power could be exercised at any time. To answer the question the court relied on the court of appeal judgment where it was held that "we are satisfied that the phrase 'at any time means just that at anytime' subject to the rights of the parties, there should be no point in limiting the time in which to correct such innocuous mistakes or errors which are merely clerical or arithmetical with absolutely no effect on the substance of the judgment. Hence if what was sought in Misc. Civil Application No. 57 of 1993 was merely to correct clerical or arithmetical mistakes arising from an accidental slip or omission; we agree that such correction can be made at any time subject to the rights of the parties”.
The court then concluded that the phrase ‘at any time’ was not be construed to extend beyond the period after a decree is fully satisfied.
The application was therefore dismissed.
The issues for determination were whether this suit was time barred and whether the suit was bad in law for being in contravention of s 6 (2) of the Government Proceedings Act [Cap.5 R.E. 2002].
Section 6(2) of the Government Proceedings Act states that ‘no suit against the government shall be instituted, and heard unless the claimant previously submits to the government minister, department or officer concerned a notice of not less than ninety days of his intention to sue the government, specifying the basis of his claim against the government, and he shall send a copy of his claim to the Attorney-General.’
The court held that in determining the question of limitation, two principles must be considered. In the first place, the court must look at the whole suit, including the reliefs sought, and see if the suit combines more than one claim based on different causes of action as one of them may be found to be time barred while the others may not. In such circumstances, it is not proper to dismiss the whole suit as time barred. Second, the court, in interpreting the provisions of a law, should read those provisions in their context as a whole. Single sections should not be read or interpreted in isolation.
The court found that the suit against the government, having been prematurely instituted before complying with the mandatory provisions of section 6 (2) of the Government Proceedings Act, was bad in law and incompetent. The suit was dismissed.
The applicant sought an order for a temporary injunction against the intended sale of a mortgaged property pending final disposal of a suit pending. The applicant's complaint was that his inability to service the loan was a result of the respondent's freezing of his account which made it impossible for him to perform his obligations under the credit facilities agreement.
The main issue was whether the applicant had established sufficient grounds to have the temporary injunction granted.
The court held that there were certain preconditions which a litigant had to meet before the court exercised its discretion to grant an application; for example demonstration that the applicant stood to suffer irreparable loss requiring the court’s intervention before the applicant’s legal right was established and proof of greater hardship and mischief suffered by the applicant if the injunction was not granted than the respondent will suffer if the order is granted.
The court also held that the conditions set out must all be met. Meeting one or two of the conditions will not be sufficient for the purpose of the court exercising its discretion to grant an injunction.
It is settled law that courts will only grant injunctions if there is evidence that there will be irreparable loss which cannot be adequately compensated by award of general damages. The court concluded that particulars of irreparable loss had not been given for the court's exercise of its discretion in the applicant's favour and so the application was dismissed.
The base of the suit was defamation whereby the plaintiff averred that the defendants defamed him.
The first issue was whether there was defamation and who was defamed among the two defendants. The court states that it is crucial in the commercial arena to inquire whether the published statement concerns the business itself or someone affiliated with the business in his individual capacity. Generally, the defamation must refer to the person defamed. In this case it had to be specifically pleaded whether the alleged defamation referred to the company business or to plaintiff witness individually.
For the second issue of whether the court had jurisdiction to hear the matter, it relied the principle contained in section 13 of the Civil Procedure Code that every suit must be instituted in the court of the lowest grade competent to try it. The object and purpose of the said provision is to prevent overcrowding in the court of higher grade where a suit may be filed in a court of lower grade; to avoid multifariousness of litigation and to ensure that case involving huge amount must be heard by a more experienced court. The suit should have been properly instituted either in the District Court or in the Court of the Resident Magistrate which have competent jurisdiction to try the same.
The court concluded that a cause of action arises when facts on which liability is founded exist of which there were none in this instance. Thus the suit was rejected.
The plaintiff was a tenant in the defendant’s premises when the tenancy agreement was terminated by the defendant.
The main issue was whether the termination of the lease agreement between the parties was illegal because the plaintiff was not served with notice of termination of the lease agreement.
The court found that the plaintiff breached the terms and conditions of the lease agreement by failing to renew the lease agreement and defaulting on payment of the rent on time.
The court considered a clause of the parties' lease agreement, finding that the parties had agreed in their lease agreement that notices relating to their lease agreement would be served to each of them in various modes. One of those modes was service by hand to the last official address of the party. Since the clause did not state that the notice must be served to the party in person or physically but to be served through his last official address the court found that service to the last official place of business of the plaintiff could not be said to have failed to meet the agreement of the parties.
Therefore, since the plaintiff was a tenant in the premises where the notice was served as he was doing his business there it cannot be said he was not served with notice to terminate the lease agreement because the notice was served to him through his last official place of business.
The court decided in favour of the respondent.
The appellant claimed from the respondents jointly and severally for general damages for physical injuries he sustained after being involved in the accident caused by the motor vehicle owned by the first respondent and insured by the second respondent.
The issue was whether the magistrate erred in law and fact by considering false evidence tendered by the witness of the respondents.
The court held that the appellant did not state if it was all evidence tendered in court which was false or which part of it is false and was considered by the trial court’s magistrate and used in making the decision of the trial court.
The court noted that it had the duty as an appellate court to review the record of evidence of the trial court in order to determine whether the conclusion reached upon the evidence received by the trial court should stand. Though the court was in agreement with the appellant that motor vehicle insurance companies were statutorily duty bound to pay compensation to the victims of the accident caused by the motor vehicles of their clients but the compensation to be paid must be proved to the standard required by the law.
The court found that there was also no evidence tendered to the trial court to establish the appellant sustained permanent incapacity but he sustained temporary disability as indicated in the said exhibit.
The main question of contention was who the rightful owner of the land in the dispute was and whether the person who distributed the farms to the plaintiffs had authority to do so.
The court considered the evidence adduced before it by both sides in an attempt to prove who is the rightful owner of the land. The court observed that despite the fact that the plaintiffs in the matter at hand were 51, only two out of all the plaintiffs testified before the court.
The law as provided under section 110 (1) of the Evidence Act, Cap 11 R.E 2002 states that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The court held that when the question is whether any person is owner of anything to which he is shown to be in possession, the burden of proving that he is not the owner is on the person who asserts that he is not the owner. Since the plaintiffs asserted in the plaint are the rightful owner of the land in dispute it was their duty to prove the first defendant is not the owner of the land.
In the result the plaintiffs were found to have failed to prove the claims they filed to court against the defendants. Consequently, the plaintiffs’ suit was dismissed.
The main case was dismissed because a party did not appear in court when it came up for hearing. The case dealt with an application to set aside the dismissal order of the court. The court held that an application to set aside a dismissal order must be based on sufficient reasons and the court has absolute discretion where sufficient cause is shown. What amounts to reasonable or sufficient cause has not been defined because the court should have the discretion to decide based on the circumstances of each case.
In this case, the applicant claimed they were not aware of the dismissal order. The court held that sufficient reasons were not shown and the court dismissed the application to set aside the dismissal notice because the lawyers were simply negligent.
In this case the applicant sought relief to set aside an ex parte order. The case illustrates the enquiry into determining who can rightly sue in the name of a corporation.
The court considered whether the High Court had made a consent order, or an ex parte order. The court held that though the order against the fifth respondent was a consent order, the order against the applicant was ex parte because the applicant was not present. The court held that the law gives the remedy to set aside an ex parte order and that it had the power under s 93 of the Civil Procedure Code (CPC) to enlarge the time period for an application.
The court considered the issue as to who was entitled to bring an action for and on behalf of the applicant. The court held that it was the company alone that could initiate or defend proceedings and not a shareholder of the company. The court held that it appeared that there were disputes regarding the internal management of the applicant. Thus, the shareholders or counsel who had initiated the application were not authorised persons.
The application was dismissed and the rest of the arguments regarding extension of time to file the application were set aside without determination.
The issue was whether the defendant breached a lease agreement. The dispute emanated from a lease agreement between the plaintiff and the defendant. Under the lease, the defendant was supposed to allocate four rooms and a corridor to the plaintiff. The plaintiff alleged that he was only allocated two rooms instead of the agreed four. He claimed damages for loss of business and general damages for loss suffered as a result of using two rooms. The defendant on the other hand argued that it allocated the four rooms to the plaintiff and that the plaintiff was the one who breached the lease agreement by not paying rent. It pointed out that the two rooms are still available and are vacant.
In deciding the matter, the court held that the defendant was in breach of contract. On damages, it dismissed the claim for special damages on loss of business opportunities pointing out that there was no evidence to support the loss. It however warded general damages of one hundred million shillings and interest of ten percent per year.
The court considered the proper remedy for a sub judice matter. Further, if the matter was a pending suit according to High Court Procedure rule 47 in the absence of an application made within six months of the last adjournment.
The court held that in terms of Civil Procedure Code s 8 when a matter is found to be sub judice the proper order is an order for stay of the matter. The court also defined the term ‘hearing’ in the ambit of rule 47 of the High Court Procedure Rules. The court held that the term is neither defined in the rules nor Civil Procedure Code. In that light, the court held that when a matter is called for orders, there is an issue of law or fact which is determined. Further, hearing and trial have different meanings. Therefore, the term hearing in rule 47 covers any judicial session before a judge or registrar.
The court was of the view that it would not deal with the matter because the court and same presiding officer had previously made the order. The court also found that the matter was called for hearing while it was still pending, and the court decided to adjourn the matter sine die. In that light, the court concluded that there was no application made within six months of the last adjournment as required by rule 47.
The court accordingly dismissed the application.
The applicant applied to set aside an arbitration award made in 2015. It was argued that the arbitrator misconducted herself when she amended the award; when she awarded nominal charges to the second respondent; and gave no reasons for ordering costs against the applicant, who was successful at the arbitration.
An arbitration award may be set aside on the grounds of an error on the face of it when reasons given for the award are based upon a legal proposition that is erroneous. It was found that the arbitrator’s reasons for making the award were erroneous and contrary to the Civil Procedure Code when awarding costs against the winning party. No reasons were provided for apportioning the costs, and for heavily weighting the costs against the winning party.
A court may also set aside an award if it is bad on its face for involving an apparent error in fact or law, or it has not complied with the requirements of finality and certainty. The award was bad on its face as it granted costs based on an apparent error of law by apportioning greater costs to the winning party. It is trite law that the losing party should bear the costs of a matter to compensate the successful party for expenses incurred for having to vindicate their rights.
The court held that there was good cause to remit the part of the award on apportionment of costs for reconsideration by the arbitrator.
The court considered an application for temporary injunction restraining the respondents from selling two seized motor vehicles. Furthermore, the court considered whether the right of seizure and sale can be exercised without the intervention of the court.
This case concerned an agreement for the sale and purchase of 10 motor vehicles. The applicant alleged that the agreement was oral, whereas the respondents alleged it was written. The applicant subsequently defaulted on the payment and the first respondent seized the vehicles and threatened to sell the vehicles on public auction.
The court found that the agreement concluded between the parties was in fact a written agreement.
The court considered the provisions of S 124 – S 128 of the Law of Contract Act. The basis of these provisions found that the pawnee may retain goods pledged for payment of any debt and may bring a suit against the pawnor upon the debt and retain the goods pledged as collateral security or he may sell the thing pledged.
The court found that the applicant (pawnor) defaulted in payment and the first respondent (pawnee) had the option of bringing a suit against the pawnor and retaining the goods as security or sell the thing pledged by giving the pawnor reasonable notice. If the proceeds are less than the amount due, the pawnor is liable to pay the balance. If the proceeds are more, the pawnee shall pay the surplus to the pawnor.
A pawnee, in possession of the title and the property pledged is entitled to sell the property without intervention of the court. However, in absence of possession, he cannot take the law into his own hands without the court’s intervention.
The court found that there was no clause in the agreement empowering the first respondent to take possession and sell the vehicles, and thus he cannot exercise his right without the court’s assistance.
The applicant filed to the court an application for the execution of the decree by attachment and sale of the judgment debtor’s property.
The issue was whether an appeal can prevent the execution of an order.
The court noted that in any civil proceedings, where the notice of appeal has been lodged in accordance with rule 83, an appeal shall not operate as a stay of execution of the decree or order appealed from except so far as the high court or tribunal may order, nor shall execution of a decree be stayed by reason of an appeal having been preferred from the decree order but the court may upon good cause shown, order stay of execution of such decree or order. The court may, upon good cause shown order stay of execution of the decree or order. It is only where there is an order for order for stay of execution that a trial court is estopped from issuing an execution order.
The execution process has two stages. The first stage is the issuance of an executive order and the second stage is the enforcement of that order which is normally done in the registry or other designed officer in the registry.
The courts took into consideration the fact that there was no order or stay of execution and concluded that it could make an order for execution despite the pendency of an appeal suit.
Execution order was granted
This case concerned a dispute between the parties which had previously resulted in the matter being referred to arbitration and an award being handed down. The court considered an application to set aside that award. The respondents made a preliminary objection to this application on three grounds: (1) that the petition could not be heard as the filing fees had not been paid, (2) the application was time-barred, and (3) the failure of the applicant to adduce evidence of the arbitration award.
On the first issue, the respondent contended that as a non-government entity, the failure to pay filing fees renders the applicant’s petition liable to be struck out. However, the court considered the rule that a government party is exempt from making payment of filing fees. In determining who is a ‘government’ party, the court considered that this status extends to local government. Accordingly the applicant is exempt from paying filing fees.
On the issue of the application being time-barred, the court considered the argument that the time within which to institute action started running from the date of publication of the award. The court found that the time for challenging an award starts to run from the day the said award is filed in court for the purpose of registration and adoption. Furthermore, the period of limitation for filing an award without intervention is 6 months, but the time for challenging the same should be brought within 60 days from the date it is filed in court for registration and adoption.
On the third issue (the adduction of the arbitral award), the court considered that it was not properly a preliminary objection per the test articulated in Mukisa Biscuit Manufacturing Ltd v Westend Distributions  EA 696. The question of whether additional evidence ought to have been adduced is not amenable to treatment as a preliminary point of law.
Accordingly, all three preliminary objections were overruled.
The main case was whether the issue before this court was directly and substantially in issue with a matter pending in the court below.
The respondent threatened the applicant to cease any operations and vacate a Lake Natron game controlled area it currently occupies (‘the hunting block’). The applicant filed this application, seeking this court to issue an interim order restraining the respondents from evicting them at the hunting block.
The respondent claimed that this court does not have the jurisdiction to entertain this matter as it was res sub judice, and thus should be dismissed. The reason lodged was that the issue in this matter was directly and substantially related to the pending appeal. The applicant argued against these claims and contended that in the pending appeal, he was challenging different issues in relation to this application.
This court applied s 8 of the Civil Procedure Code in determining that the facts and circumstances of this application where identical with the pending matter below, and as such res sub judice.
This application was stayed pending the outcome of the appeal in the court below.