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

The decision below was an order granting an interlocutory injunction sought under Order 39 of the Civil Procedure Rules. Such orders fall within the class of orders against which an appeal lies as of right under Order 42(1) of the Civil Procedure Rules, derived from section 75(1) of the Civil Procedure Act. An application for leave to appeal in respect of such an order is therefore unnecessary and constitutes an abuse of the process of the Court.

Order 42 rules (2), (3) and (4) of the Civil Procedure Rules govern applications for leave but prescribe no time limit. Section 58 of the Interpretation and General Provisions Act then applies, requiring action without unreasonable delay and as often as occasion arises. Rule 39(a) of the Court of Appeal Rules, as subsidiary legislation, cannot override section 75 of the Civil Procedure Act or section 58 of Cap 2, so Rule 4 cannot be used to extend that time. The applicant could have sought leave from the superior court without undue delay.

Rule 42(1) mandates that a motion shall state the grounds of the application, and Rule 42(2) requires the notice of motion to be substantially in Form A, which contains the same prerequisite. The applicant's notice of motion contained no grounds, whether stated directly or by cross-reference to the supporting affidavit. This mandatory requirement having been breached, the notice of motion was incompetent and was struck out on this independent ground.

Rule 74(1) and (2) require a notice of appeal within fourteen days as an essential step, failing which the appeal may be struck out. Rule 74(4) provides that where an appeal lies only with leave, leave need not be obtained before lodging the notice of appeal. 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 made no decision on the issue.