Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. NAI. 253 of 1997 (UR. 111/97)· [1997] KECA 252 (KLR)

CAPTAIN (RTD) J.N. WAFUBWA T/A RED IMPEX GENERAL SERVICES vs DAVID ANUNDA T/A DAVANU ENTERPRISES & 2 OTHERS [1997] KECA 252 (KLR)

Court of Appeal of Kenya
18 November 1997
1,248 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to strike out an appeal, ruling it had no power to dismiss appeals as frivolous except under specific procedural rules.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nairobi (Gicheru, Tunoi JJ.A and Bosire Ag. JA) on an application by Captain (RTD) J.N. Wafubwa, the respondent in Civil Appeal No. 206 of 1997, to strike out the record of appeal lodged on 9th September 1997 from a ruling of the High Court (Hayanga J) of 18th April 1997 in H.C.C.C. No. 2725 of 1994. The applicant invoked rule 80 of the Court of Appeal Rules and section 5(d), contending the appeal was filed out of time and was frivolous, vexatious and brought for delay. The court held that section 5(d) of the Appellate Jurisdiction Act only empowers the Rules Committee to make rules for summary determination of appeals and, no such rules having been made, the court lacked jurisdiction to determine the appeal summarily except under rule 80. On timeliness, rule 81 requires institution within 60 days of the notice of appeal, but the proviso excludes the period for preparation of proceedings where certified by the registrar. A certificate of delay existed and, although the applicant challenged its coverage, he failed to place the material before the court; the onus lay on him, so the appeal was prima facie filed in time. The court further found the application an abuse of process, being the third application on identical grounds, two of which had been fully heard and dismissed. The application was dismissed with costs to the 1st respondent.

Key legal issues

#
01

Jurisdiction to summarily determine an appeal under section 5(d) of the Appellate Jurisdiction Act

Holding

The court lacks jurisdiction to summarily determine an appeal under section 5(d) because the Rules Committee has not made rules conferring that power; the court's jurisdiction is limited to rule 80

Reasoning

Section 5(d) merely donates power to the Rules Committee to make rules for summary determination of frivolous, vexatious or delaying appeals. Since no such rules were made, the section cannot itself be invoked as a source of the court's power. The applicant's reliance on section 5(d) (and on rule 5(2), which was inapplicable) therefore failed, leaving only rule 80 as the avenue for striking out an appeal.

p. 1
02

Whether the appeal was instituted out of time under rule 81

Holding

Prima facie the appeal was filed in time because the period covered by the certificate of delay is excluded from computation and the certificate's validity was not impugned with material

Reasoning

Rule 81 requires an appeal to be instituted within 60 days of lodging the notice of appeal. The proviso excludes the period required for preparation and delivery of copies of proceedings, but only if certified by the registrar. Although the applicant challenged the certificate's coverage of 3rd to 11th July 1997, the certificate was not placed before the court for scrutiny and the applicant bore the onus of impugning it. It was common ground a certificate had been given, so the appeal was prima facie in time.

p. 2
03

Abuse of process by repeated applications

Holding

The application was an abuse of process because it repeated grounds already fully heard and dismissed in two prior applications (Nos. 72 of 1997 and 238 of 1997)

Reasoning

The applicant had twice previously sought to strike out the notice of appeal or record of appeal on the same grounds, and both applications were fully heard and dismissed for lack of merits. Bringing a third application on identical grounds served only to vex the 1st respondent and delay the appeal and the underlying suit, contrary to the applicant's professed desire for expeditious disposal.

p. 2

Legal principles established

#
  • Section 5(d) of the Appellate Jurisdiction Act empowers the making of rules for summary determination of frivolous or vexatious appeals but does not itself empower the court to summarily determine an appeal; absent such rules, the court's power is confined to rule 80
  • An appeal may be struck out under rule 80 only on the ground that no appeal lies or that some essential step in the proceedings has not been taken within the prescribed time
  • The period required for preparation and delivery of copies of proceedings may be excluded from computation under the proviso to rule 81 only if the registrar of the superior court has so certified
  • The onus of impugning the validity of a certificate of delay lies on the party challenging it, who must place the material before the court
  • Repeated applications on the same grounds already dismissed on the merits constitute an abuse of the process of the court

Court orders

#
  1. 1.The application is dismissed with costs to the 1st respondent

Authorities

#

Legislation

  • Appellate Jurisdiction Actsection 5(d)
  • Court of Appeal Rulesrule 80
  • Court of Appeal Rulesrule 81 (including proviso)
  • Court of Appeal Rulesrule 5(2)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2725 of 1994
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules and section 5(d) of the Appellate Jurisdiction Act (as invoked by the applicant)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "CAPTAIN (RTD) J.N. WAFUBWA T/A RED IMPEX GENERAL SERVICES vs DAVID ANUNDA T/A DAVANU ENTERPRISES & 2 OTHERS [1997] KECA 252 (KLR)", Case Analysis (1997). Civil Application No. NAI. 253 of 1997 (UR. 111/97). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/252/eng@1997-11-18

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