Pelican Engineering & Construction Company Limited v Nairobi Golf Hotels (kenya) Limited

Order 42(1) of the Civil Procedure Rules, derived from section 75(1) of the Civil Procedure Act, makes an appeal from such an interlocutory order appealable as of right. An application seeking leave to appeal from such an order is therefore unnecessary and constitutes an abuse of the process of the Court, rendering the application incompetent.

The applicant argued that the fourteen-day period in Rule 39(a) could be extended by Rule 4. The court held that a rule of court, being subsidiary legislation, cannot override principal legislation. Where the rules are silent on time, section 58 of Cap 2 applies, requiring the application without unreasonable delay; the applicant's 34-day delay was unexplained adequately and the application was misconceived.

Rule 42(1) mandatorily requires a motion to state the grounds of the application, and Rule 42(2) requires the notice to be substantially in Form A, which contains the same prerequisite. The applicant's motion stated no grounds, whether directly or by cross-reference to the supporting affidavit, and was for that reason independently incompetent and liable to be struck out.

Rule 74 requires a notice of appeal within fourteen days as an essential step, and even where leave is required, the notice must still be filed. However, the court held that the stage had not been reached where a notice of appeal or appeal existed that could be struck out, and therefore made no decision on whether the omission was fatal to the present application.