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Court of AppealDismissedCivil Case No 223 of 2002

Agricultural Finance Corporation v Rono [2003] KECA 160 (KLR)

Court of Appeal of Kenya
28 February 2003
Philip Kiptoo TunoiP. K. TunoiSBS. E. O. BosireEOE. Owuor
424 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to strike out an appeal, confirming that appeals from injunction orders made under Order XXXIX need no prior court permission.

What this practically means

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Executive summary

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This was an application under rule 80 of the Court of Appeal Rules seeking to strike out a notice of appeal dated 18th July 2002 filed in Nakuru High Court Case No 14 of 2002, together with the record of appeal filed in the Court of Appeal in Civil Case No 223 of 2002. The applicant argued that because the respondent's application in the High Court had sought both a temporary restraining injunction and a mandatory injunction, and was expressed to be brought under section 3A of the Civil Procedure Act and Order XXXIX rules 1 and 9 of the Civil Procedure Rules, leave to appeal was required in respect of the mandatory injunction limb. The Court of Appeal held that it was impossible to determine which prayer was granted under which provision, and that section 3A merely preserves the inherent power of the court without specifically authorising the bringing of any motion under it; the application was substantively one under Order XXXIX, from which appeals lie without leave. The second ground, that the draft extracted order was not sent to the applicant's counsel for approval before sealing, failed because the respondent deponed that it had been forwarded and only sent to court after the applicant's advocates failed to approve it within a reasonable time, an averment the applicant did not counter. The full bench of Tunoi, Bosire and Owuor, JJ A unanimously dismissed the application with costs assessed at Kshs 10,000/=.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent was obliged to seek leave to appeal because the High Court application was expressed to be brought under section 3A of the Civil Procedure Act, which concerns a mandatory injunction
  2. 2.Whether the extracted draft order was required to be sent to the applicant's counsel for approval before sealing under Order XX rule 7 of the Civil Procedure Rules, and whether non-compliance warranted striking out

Key legal issues

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01

Whether leave to appeal was required where the High Court application cited section 3A of the Civil Procedure Act alongside Order XXXIX rules 1 and 9

Holding

Leave was not required. The substantive application was under Order XXXIX; section 3A merely preserves inherent power and does not authorise motions.

Reasoning

The court noted the respondent's application was expressed to be brought under both section 3A of the Civil Procedure Act and Order XXXIX rules 1 and 9 of the Civil Procedure Rules. Since it was impossible to say which prayer was granted under which provision, the court examined the substance. Section 3A preserves inherent power but does not specifically authorise motions. The application was properly brought under Order XXXIX, and appeals from orders under that Order require no leave.

p. 1
02

Whether the respondent failed to comply with Order XX rule 7 by not sending the draft extracted order to the applicant for approval

Holding

No failure established. The respondent deponed that the draft was sent to the applicant's counsel, who failed to approve it within a reasonable time; the applicant did not counter that averment.

Reasoning

The respondent's replying affidavit deponed that the draft order was forwarded to the applicant's counsel and only sent for sealing after the advocates failed to approve it within a reasonable time. The applicant did not counter this averment, so the court could not find non-compliance with Order XX rule 7. The ground therefore failed.

p. 2

Legal principles established

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  • Section 3A of the Civil Procedure Act preserves the court's inherent power but does not authorise the bringing of a motion under it; applications expressed under Order XXXIX require no leave to appeal.
  • No leave to appeal is required for appeals from orders made pursuant to an application under Order XXXIX.

Court orders

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  1. 1.The application to strike out the notice of appeal dated 18th July 2002 and the record of appeal is dismissed
  2. 2.Costs awarded to the respondent, assessed at Kshs 10,000/=.

The bench

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

Philip Kiptoo Tunoi
majority
SB
majority
EO
majority
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules

Relief refused

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Striking out the notice of appeal dated 18th July 2002 and the record of appeal

The application under Order XXXIX required no leave to appeal, and the applicant failed to rebut the respondent's averment that the draft order was forwarded for approval

p. 2

Costs

Application dismissed with costs assessed at Kshs 10,000/=.

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.

section 3A of the Civil Procedure Act merely preserves the inherent power of the Court, but does not specifically authorize the bringing of any motion under it
p. 1Scope of section 3A inherent jurisdiction
In the result, this application fails and is dismissed with costs assessed at Kshs 10,000/=.
p. 2Final orders and costs
As the applicant has not countered that averment, we are unable to say that the respondent failed to comply with the provisions of order XX rule 7 of the Civil Procedure Rules.
p. 2Uncontroverted affidavit evidence on approval of draft order

Issues in the judgment

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minor

The judgment does not state the title of the case, the appeal number of the application before the Court of Appeal, or the names of the parties; only case numbers and roles are given.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Agricultural Finance Corporation v Rono [2003] KECA 160 (KLR)", Case Analysis (2003). Civil Case No 223 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/160/eng@2003-02-28

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