CAPTAIN (RTD) J.N. WAFUBWA T/A RED IMPEX GENERAL SERVICES vs DAVID ANUNDA T/A DAVANU ENTERPRISES & 2 OTHERS [1997] KECA 252 (KLR)
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
#Key legal issues
#Jurisdiction to summarily determine an appeal under section 5(d) of the Appellate Jurisdiction Act
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
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.
Whether the appeal was instituted out of time under rule 81
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
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.
Abuse of process by repeated applications
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)
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.
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.The application is dismissed with costs to the 1st respondent
- 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.