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Court of AppealStruck OutCivil Appeal No. 268 of 2000

Industrial & Commercial Development Corporation v Sum Model Industries Limited [2001] KECA 346 (KLR)

Court of Appeal
9 July 2001
ROR. S. C. OmoloASA. B. ShahEOE. O. O'Kubasu
256 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal filed late without permission, confirming that a wrongly issued certificate of delay cannot rescue an incompetent appeal.

What this practically means

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Executive summary

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This short ruling of the Court of Appeal at Nairobi (Omolo, Shah and O'Kubasu, JJ.A.) disposed of a motion to strike out Civil Appeal No. 268 of 2000, an appeal by Industrial & Commercial Development Corporation against Sum Model Industries Limited from a High Court judgment (Mbogholi J) dated 16 February 2000 in H.C.C.C. No. 3389 of 1994. Counsel for the appellant, Mr K'Owade, candidly conceded that the appeal had been lodged out of time and without the leave of the court. He had come into the matter late; by then a certificate of delay had already been issued by a deputy registrar showing that the proceedings and judgment were available and had been issued to the earlier advocate. A second certificate was issued to Mr K'Owade on his entry into the matter, and he conceded it was issued in error, being unaware of the earlier certificate. The court agreed with that concession. Holding that the appeal was incompetent because it was filed out of time and without leave, the court allowed the motion, struck out the appeal, and awarded the costs of the appeal and of the motion to the applicant (respondent). The ruling is a brief procedural decision on the competence of out-of-time appeals and the futility of an erroneously issued second certificate of delay; it cites no authorities and contains no separate opinions.

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 and without leave of the court is competent
  2. 2.Whether the motion to strike out the appeal should be allowed

Key legal issues

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01

Competence of an appeal lodged out of time without leave

Holding

The appeal was incompetent because it was filed out of time and without leave; the erroneous second certificate of delay did not cure the defect.

Reasoning

Counsel for the appellant conceded the appeal was lodged out of time without leave. A certificate of delay had earlier been issued showing proceedings and judgment were available and issued to the previous advocate; a second certificate issued to incoming counsel was conceded, and agreed by the court, to have been issued in error. The court held the appeal incompetent and struck it out on the respondent's motion.

p. 2

Legal principles established

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  • An appeal filed out of time and without the leave of the court is incompetent and liable to be struck out, notwithstanding the subsequent issue of a certificate of delay in error.

Court orders

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  1. 1.The motion to strike out the appeal is allowed
  2. 2.The appeal is struck out
  3. 3.Costs of the appeal and of the motion are awarded to the applicant (respondent)

The bench

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

RO
majority

Wrote the judgment

AS
majority

Wrote the judgment

EO
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 3389 of 1994
Jurisdiction invoked
Inherent appellate jurisdiction to strike out an incompetent appeal filed out of time without leave (Court of Appeal procedural jurisdiction)

Relief refused

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The appellant's continued prosecution of the appeal

The appeal was incompetent, having been lodged out of time and without the leave of the court

p. 2

Costs

The appeal is struck out with costs thereof and the costs of the motion to the applicant (respondent).

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 appeal, however, is incompetent, it having been filed out of time and without the leave of the court.
p. 2Incompetence of out-of-time appeal filed without leave
We allow the motion to strike out the appeal and we strike out the appeal with costs thereof and the costs of the motion to the applicant.
p. 2Final orders - striking out and costs

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, "Industrial & Commercial Development Corporation v Sum Model Industries Limited [2001] KECA 346 (KLR)", Case Analysis (2001). Civil Appeal No. 268 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/346/eng@2001-07-09

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