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Court of AppealDismissedNot stated in the judgment· [1997] KECA 154 (KLR)

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

Court of Appeal of Kenya
19 June 1997
0 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a leave-to-appeal application because the order was appealable as of right and the motion lacked stated grounds.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal (Akiwumi, JA) delivered at Nairobi on 19th June 1997, determining an application under Rule 4 of the Court of Appeal Rules in which the applicant sought leave to file an application for leave to appeal out of time against an order of the High Court (Githinji, J) dated 8th May 1997 granting an interlocutory injunction against it under Order 39 of the Civil Procedure Rules. The respondent objected on three grounds: absence of a notice of appeal, silence of the motion on grounds, and lack of jurisdiction. The court held that because the order appealed from was one appealable as of right under Order 42(1) of the Civil Procedure Rules, derived from section 75(1) of the Civil Procedure Act, the application for leave was an abuse of the process of the Court and incompetent. In the alternative, the court considered what would apply if leave were required: since Order 42 rules (2), (3) and (4) prescribe no time limit, section 58 of the Interpretation and General Provisions Act requires such an application to be made without unreasonable delay, and Rule 39(a) of the Court of Appeal Rules, being subsidiary legislation, cannot override section 75 of the Civil Procedure Act or section 58 of Cap 2 so as to make the time extendable under Rule 4. The court followed Omolo, JA's reasoning in the Matiba case and expressed doubt about the contrary decision in Carmella Wothugu Karigaca. Independently, the notice of motion breached the mandatory requirement of Rule 42(1) to state grounds and was incompetent on that basis also. The court declined to rule on the effect of the failure to file a notice of appeal. The application was struck out with costs to the respondent.

Key legal issues

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01

Competence of an application for leave where appeal lies as of right

Holding

The application was struck out as an abuse of process because the interlocutory injunction order under Order 39 was appealable as of right under Order 42(1) of the Civil Procedure Rules and section 75(1) of the Civil Procedure Act, so no leave was needed.

Reasoning

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.

p. 1
02

Whether Rule 4 can extend time under Rule 39(a) where leave is required

Holding

No. Rule 39(a), being subsidiary legislation, cannot affect principal legislation; where the rules prescribe no time for applying for leave, section 58 of Cap 2 requires the application to be made without unreasonable delay, and Rule 4 cannot displace that.

Reasoning

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.

p. 2
03

Compliance with Rule 42 of the Court of Appeal Rules

Holding

The notice of motion was incompetent because it did not state the grounds of the application as mandated by Rule 42(1) and Form A in the first schedule.

Reasoning

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.

p. 3
04

Failure to file a notice of appeal

Holding

The court declined to decide whether failure to file a notice of appeal was fatal, since no appeal or notice of appeal yet existed that could be struck out.

Reasoning

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.

p. 3

Legal principles established

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  • Where an appeal lies as of right from an interlocutory order, an application for leave to appeal is an abuse of the process and incompetent
  • A subsidiary legislation such as Rule 39(a) of the Court of Appeal Rules cannot override principal legislation such as section 75 of the Civil Procedure Act and section 58 of the Interpretation and General Provisions Act
  • Where no time is prescribed for an application for leave to appeal, it must be made without unreasonable delay pursuant to section 58 of Cap 2
  • A notice of motion under Rule 42(1) of the Court of Appeal Rules must state the grounds of the application; omission of the grounds renders it incompetent

Court orders

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  1. 1.The applicant's notice of motion dated 12th June 1997 is struck out
  2. 2.Costs of the application awarded to the respondent
On appeal from
High Court of Kenya at Nairobi
Not stated in the judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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, "Pelican Engineering & Construction Company Limited v Nairobi Golf Hotels (kenya) Limited", Case Analysis (1997). Not stated in the judgment. Source: 

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