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Court of AppealOtherCivil Appeal Appli 149 of 2002· [2005] KECA 189 (KLR)

Ruaha Concrete Company Limited v Middle East Bank of Kenya Limited [2005] KECA 189 (KLR)

Court of Appeal of Kenya
15 July 2005
ROR.S.C. OmoloEOE.O. O'KubasuEGE.M. Githinji
748 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a bank's late bid to kill an appeal, ruling that new court rule deadlines apply the moment they're gazetted.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (Omolo, O'Kubasu and Githinji, JJ.A) delivered on 15th July 2005 in Civil Appeal Appli 149 of 2002. Ruaha Concrete Company Limited, the appellant, raised a preliminary objection against Middle East Bank of Kenya Limited's application to strike out its appeal against a High Court ruling of 27th January 2000 (Hewett, Commissioner of Assize) in H.C.C.C. No. 636 of 1999, which had struck out Ruaha's Shs.29,520,000 suit arising from payment out of its account through a forged cheque. The central question was which version of Rule 80 of the Court of Appeal Rules governed the striking-out application. The repealed Rule 80 imposed no time limit, but Legal Notice No. 152 of 2002, published on 30th August 2002, replaced it with a new Rule 80 whose proviso barred applications made more than thirty days after service of the record of appeal. Applying Sections 22 and 27(1) of the Interpretation and General Provisions Act (Cap 2), the court held the old rule ceased to exist on 30th August 2002, so the new 30-day limit applied. The record was served on 17th June 2002, yet the application was filed on 25th July 2003, grossly out of time and without leave. The court also held that the earlier leave to amend the application could not validate it, since the limitation issue was not before the court when leave was granted. The preliminary objection was upheld, the striking-out application struck out as incompetent, and Ruaha awarded the costs of the application. The appeal itself remains pending; the underlying High Court ruling was not disturbed. The decision binds subordinate courts on the commencement and replacement of subsidiary legislation under Cap 2.

Key legal issues

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01

Which version of Rule 80 governed the application to strike out the appeal

Holding

The new Rule 80, with its 30-day proviso, applied because the repealed rule ceased to exist when the new rule came into force on publication.

Reasoning

Legal Notice No. 152 of 2002 deleted Rule 80 wholly and replaced it. Under Section 22 of Cap 2, a provision deleted wholly and replaced remains in force only until the replacement comes into operation. Under Section 27(1) of Cap 2, subsidiary legislation operates from its Gazette publication date, i.e. 30th August 2002. A 'written law' under Cap 2 includes subsidiary legislation. An application to strike out could not rest on a non-existent rule and is logically made under the new rule, so the 30-day limitation applied.

p. 2
02

Whether the striking-out application filed on 25th July 2003 was in time

Holding

It was grossly out of time, service of the record having been effected on 17th June 2002 and the 30-day period under the proviso to new Rule 80 applying.

Reasoning

The record of appeal was served on the respondent's advocates on 17th June 2002, a fact not denied. The 30-day limitation in the proviso to new Rule 80 became operational on 30th August 2002. The application was filed on 25th July 2003, almost a year later, without leave, and was therefore incompetent.

p. 2
03

Whether leave to amend the application cured the out-of-time filing

Holding

No; leave to amend could not validate an application that was incompetent for being out of time, as the limitation issue was not before the court when leave was granted.

Reasoning

Mr. Esmail contended that the grant of leave to amend automatically extended time. The court rejected this: the validity of the application as regards limitation was not an issue before the court when leave to amend was granted on 17th November 2003, so the leave could not operate as an extension of time or confer validity on an otherwise incompetent application.

p. 2

Legal principles established

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  • Where a subsidiary legislation deletes a rule wholly and replaces it with a new rule, the old rule ceases to be in force on the date the new rule comes into operation, being the date of publication of the legal notice in the Kenya Gazette.
  • Under Section 27(1) of the Interpretation and General Provisions Act (Cap 2), subsidiary legislation comes into operation on the date of its publication in the Kenya Gazette.
  • An application that is filed outside a statutory time limit and without leave is incompetent, and a court cannot by granting leave to amend confer validity on it where the limitation issue was not then before the court.

Court orders

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  1. 1.The preliminary objection by Ruaha Concrete Company Limited is upheld.
  2. 2.The respondent's application to strike out the appeal is struck out as incompetent.
  3. 3.The appellant (Ruaha Concrete Company Limited) is awarded the costs of the application.

Authorities

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Legislation

  • Rules of the Court of Appeal (Kenya)Rule 80 (both repealed and current versions, including proviso)
  • Interpretation and General Provisions Act (Cap 2)Section 27(1)
  • Interpretation and General Provisions Act (Cap 2)Section 22
  • Interpretation and General Provisions Act (Cap 2)Definition of 'written law'
  • Legal Notice No. 152 of 2002Deletion and replacement of Rule 80
On appeal from
High Court of Kenya at Milimani Commercial Court
H.C.C.C. No. 636 of 1999
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Rules of the Court (Rule 80), the appeal being against a striking-out ruling of the High Court; the instant matter is the respondent's application to strike out the appeal.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Ruaha Concrete Company Limited v Middle East Bank of Kenya Limited [2005] KECA 189 (KLR)", Case Analysis (2005). Civil Appeal Appli 149 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/189/eng@2005-07-15

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