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Court of AppealStruck OutCivil Appeal 223 of 1995

CORPORATE INSURANCE CO. LTD v HAMID CHEMICALS LIMITED [1997] KECA 69 (KLR)

Court of Appeal of Kenya
17 February 1997
RKR. O. KwachAAA. M. AkiwumiASA. B. Shah
233 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that an appeal filed late without the court's permission is invalid and can be struck out, with costs against the appellant.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Nairobi (Kwach, Akiwumi and Shah, JJA) delivered on 17th February 1997 in Civil Appeal 223 of 1995, an appeal by Corporate Insurance Co. Ltd against the judgment and decree of the High Court (Justice G. S. Pall) dated 16th February 1993 in H.C.C.C. No. 1824 of 1987. The respondent, Hamid Chemicals Limited, took out a Notice of Motion under rule 80 of the Court of Appeal Rules seeking to strike out the appeal filed by the appellant on 7th December 1995 on the ground that it was filed out of time without leave of the Court. Counsel for the appellant did not dispute the default, contending only that costs should not be awarded because she had been served only the previous Friday. The court noted that the motion, filed on 14th February 1997, gave the appellant sufficient time under rule 49. The application was granted, the appeal was struck out as incompetent, and the respondent was awarded both the costs of the appeal and the costs of the motion. The ruling binds lower courts to the proposition that an appeal filed out of time without leave is incompetent and may be struck out under rule 80. No authorities were cited and the bench was unanimous, delivering a single ruling of the court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an appeal filed out of time without leave of the Court is competent and may be struck out under rule 80 of the Court of Appeal Rules

Key legal issues

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01

Whether an appeal filed out of time without leave of the Court should be struck out

Holding

Yes. The appeal filed on 7th December 1995 was out of time and no leave was sought; the respondent's motion under rule 80 was granted and the appeal struck out as incompetent, with costs to the respondent.

Reasoning

The respondent moved under rule 80 of the Court of Appeal Rules to strike out the appeal on the ground that it was filed out of time without leave. Counsel for the appellant did not dispute the default, seeking only to avoid costs on the basis of late service. The motion, filed on 14th February 1997, gave the appellant sufficient time under rule 49. The court granted the application, struck out the appeal as incompetent and awarded costs to the respondent.

p. 2

Legal principles established

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  • An appeal filed out of time without the leave of the Court is incompetent and liable to be struck out under rule 80 of the Court of Appeal Rules.

Court orders

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  1. 1.The appeal is struck out as incompetent
  2. 2.Costs of the appeal granted to the respondent
  3. 3.The respondent awarded the costs of the motion

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RK
majority
AA
majority
AS
majority
On appeal from
High Court of Kenya at Nairobi
H. C. C. No. 1824 of 1987
Jurisdiction invoked
Court of Appeal Rules, rules 80 and 49

Relief refused

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Appellant's request that costs not be granted to the respondent

The appellant did not dispute that the appeal was filed out of time without leave; the court declined the request and awarded costs to the respondent

p. 2

Costs

Costs of the appeal to the respondent; the respondent will also have the costs of the motion.

Quotable passages

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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 application is granted and the appeal is struck out as incompetent with costs to the respondent.
p. 2Final orders - striking out of incompetent appeal
The respondent will also have the costs of the motion.
p. 2Costs of the striking-out motion
on the ground that it was filed out of time without the leave of the Court being sought
p. 2Ground for striking out under rule 80

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "CORPORATE INSURANCE CO. LTD v HAMID CHEMICALS LIMITED [1997] KECA 69 (KLR)", Case Analysis (1997). Civil Appeal 223 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/69/eng@1997-02-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.