Wakilii

Central Bank of Kenya v Pontrilas Investments Limited and Another (Appeal No.3 of 2020)

East African Court of Justice · [2021] EACJ 36 · 2021 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from ruling of First Instance Division on application for witness summons and document production in underlying reference concerning bank supervision
Decision
Both appeal and cross-appeal dismissed; matter remitted to Trial Court to proceed with hearing of underlying reference

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice Appellate Division dismissed both the appeal and cross-appeal concerning procedural orders made by the First Instance Division in an application for witness summons and document production. The Court held that the Trial Court properly exercised its discretion under Rule 66 of the Court's Rules of Procedure in ordering production of certain documents and summoning the Head of Supervision as a witness. The Court further held that jurisdictional objections raising mixed questions of law and fact were properly deferred to the hearing of the reference on the merits, and that amendments to pleadings were properly allowed under the Court's rules.

Outcome

Both appeal and cross-appeal dismissed; matter remitted to Trial Court to proceed with hearing of underlying reference

Facts

The 1st Respondent, Pontrilas Investments Limited, filed a reference before the First Instance Division of the East African Court of Justice alleging that the Central Bank of Kenya (Appellant) and the Attorney General of Kenya failed to properly supervise Imperial Bank, where the 1st Respondent held deposits. Imperial Bank was placed under receivership by the Kenya Deposit Insurance Corporation on 13 October 2015 following discovery of fraudulent activities. The 1st Respondent sought compensation for lost deposits and alleged breaches of the Treaty for the Establishment of the East African Community. The Appellant raised preliminary objections including lack of jurisdiction, arguing it was not an institution of the Community. The Trial Court deferred determination of jurisdictional issues to the hearing on merits. The 1st Respondent then applied for witness summons to compel the Governor of the Central Bank to testify and produce documents. The Trial Court allowed production of some documents and summoned the Head of Supervision instead of the Governor. Both parties appealed aspects of this ruling.

Issues

  1. Whether the Trial Court committed a procedural irregularity by ordering the production of the documents in B13(c), (e) and (i).
  2. Whether the Trial Court committed a procedural irregularity by excluding the documents in B13(a), (b) and (f) of Schedule A from the documents to be produced.
  3. Whether the Trial Court committed a procedural irregularity by issuing witness summons to the Appellant's Head of Supervision.
  4. Whether the Trial Court committed a procedural irregularity in not considering or properly weighing the Appellant's points of law and submissions.
  5. Whether the parties are entitled to the remedies sought.

Orders

  • The Appeal is dismissed.
  • The Cross-Appeal is dismissed.
  • Each party to bear its own costs.
  • The Trial Court to proceed to hear and determine Reference No. 8 of 2017.

Rules and key headnotes

Civil Procedure — Preliminary Objections — Nature and Scope — Mixed Questions of Law and Fact
A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded are correct. Where determination of a preliminary objection requires ascertainment of facts or involves mixed questions of law and fact, it is not a proper preliminary objection and should be determined at the hearing of the matter on the merits after evidence is adduced.
Civil Procedure — Jurisdiction — Threshold Issue — Determination Before Merits
Jurisdiction is a threshold issue that must be determined before the court proceeds to the merits. Without jurisdiction, the court cannot proceed at all. However, where jurisdictional issues involve contested questions of fact, they cannot be determined as preliminary points of law but must be resolved after hearing evidence.
Civil Procedure — Witness Summons — Discretionary Power — Scope of Court's Authority
Under Rule 66 of the East African Court of Justice Rules of Procedure, the Court has broad discretionary power to summon any person whose attendance is required to give evidence or produce documents, either on application by a party or on its own motion. The power is not contingent upon demonstration that the witness is unwilling to testify, and exercise of such discretion does not constitute a procedural irregularity unless shown to be injudicious.
Civil Procedure — Document Production — Requirements — Specificity, Relevance, and Possession
To obtain an order for production of documents, the applicant must demonstrate that the documents are described with sufficient specificity to allow identification, are relevant to the issues in the case, and are in the possession or under the control of the party from whom production is sought. Specificity of document identification is a primary consideration, as relevance and possession cannot be properly assessed without reasonably explicit description of the documents.
Civil Procedure — Amendment of Pleadings — Discretionary Power — Principles
Courts have broad discretionary power under their rules of procedure to allow amendments to pleadings at any stage of proceedings on such terms as may be just. The primary consideration is to avoid injustice and ensure that the real question in controversy between the parties is before the court. Amendments should be freely allowed if they can be made without injustice to the other side.
Civil Procedure — Adversarial System — Witness Summons — Compatibility
The power to summon witnesses to testify and produce documents is not inconsistent with an adversarial system of procedure. All Partner States of the East African Community with adversarial systems have provisions empowering courts to summon witnesses and order production of documents, demonstrating that such powers are compatible with adversarial procedure.
Administrative Law — Institutions of the Community — Determination — Questions of Fact
Whether an entity is an institution of the East African Community under Article 9 of the Treaty may involve questions of fact requiring evidence, particularly where the entity's status depends on whether it was established by the Summit under Article 9(2). Such determination cannot be made as a preliminary point of law but requires hearing evidence at trial.

Legislation cited (25)

  • Constitution of Kenya Article 231
  • Central Bank of Kenya Act Cap 491
  • Companies Act No. 17 of 2015 (Kenya)
  • Treaty for the Establishment of the East African Community Article 6
  • Treaty for the Establishment of the East African Community Article 7
  • Treaty for the Establishment of the East African Community Article 8(1)
  • Treaty for the Establishment of the East African Community Article 9
  • Treaty for the Establishment of the East African Community Article 30
  • Treaty for the Establishment of the East African Community Article 82(1)
  • Treaty for the Establishment of the East African Community Article 126
  • Protocol Establishing the East African Community Monetary Union Article 3
  • Protocol Establishing the East African Community Monetary Union Article 14
  • Constitution of Kenya Article 40
  • Constitution of Kenya Article 46
  • Constitution of Kenya Article 47
  • East African Court of Justice Rules of Procedure 2019 Rule 41
  • East African Court of Justice Rules of Procedure 2019 Rule 43
  • East African Court of Justice Rules of Procedure 2019 Rule 48
  • East African Court of Justice Rules of Procedure 2019 Rule 51
  • East African Court of Justice Rules of Procedure 2019 Rule 55(2)
  • East African Court of Justice Rules of Procedure 2019 Rule 66
  • East African Court of Justice Rules of Procedure 2019 Rule 94(4)
  • Uganda Civil Procedure Act Cap 71 s.22(b)
  • Tanzania Civil Procedure Code Cap 33 s.25(b)
  • Kenya Civil Procedure Act Cap 21 s.22(b)

Cases cited (18)

  • Modern Holdings (EA) Ltd v Kenya Ports Authority (Reference No. 1 of 2008)
  • Hillary Ndayizamba v Attorney General of Burundi (Reference No. 3 of 2012)
  • Alcon International Ltd v The Standard Chartered Bank of Uganda & 2 Others (Reference No. 2 of 2011)
  • Prosecutor v. William Samoei Ruto & another (ICC-01/09-01/11)
  • Oluoch v Charagu [2003] EA 649
  • Motor Mart & Exchange Ltd v The Standard Insurance Co Ltd [1960] EA 616
  • Pushpa d/o Raojabhat M Patel v Fleet Transport Company Ltd [1961] 1 EA 1025
  • Mukisa Biscuit Manufacturers Ltd v West End Distributors Ltd [1969] EA 696
  • Democratic Party v The Secretary General, EAC & Another (Reference No. 2 of 2012)
  • The Attorney General of the United Republic of Tanzania v African Network for Animal Welfare (Appeal No. 3 of 2011)
  • Manariyo Desire v The Attorney General of Burundi (Appeal No. 1 of 2017)
  • Johnson Akol Omunyokol v Attorney General of Uganda (Application No. 3 of 2016)
  • Eastern Bakery v Castelino [1958] EA 461
  • Shivji v Pellegrini [1972] HCD N. 76
  • Rogers Mogaka Mogusu v. George Onyango Oloo & 2 Others [2004] eKLR
  • The Attorney General of Burundi v The Secretary General, East Africa Community & Another (Appeal No. 2 of 2019)
  • Guyana v. Suriname, International Courts of General Jurisdiction (ICGJ) 370 (PGA 2007)
  • Democratic Republic Of Congo v. Uganda (2005) ICJ 201

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Central Bank of Kenya v Pontrilas Investments Limited and Another (Appeal No.3 of 2020) [2021] EACJ 36 (18 November 2021)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.