Quasar Ltd. v Kobil Petroleum Ltd.
The bottom line
#Kenya's Court of Appeal refused to strike out Quasar Ltd's appeal, ruling that a delayed bespeaking letter is not a valid ground for killing an appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether delay in sending the bespeaking letter to the respondent renders an appeal incurably defective
It does not. Section 58 of the Interpretation and General Provisions Act was relied on by the applicant, but counsel produced no authority supporting striking out on that basis, and the court refused to create such a new ground.
Counsel argued that although the Rules set no time limit for sending a copy of the bespeaking letter, section 58 of the Interpretation and General Provisions Act requires such acts to be done without unreasonable delay. An eight-month delay was conceded. The court noted counsel cited no authority where an appeal was struck out on that ground alone, and declined to expand the grounds for striking out appeals, especially as the respondent had abandoned its extension-of-time application.
Whether the perfected order accorded with the ruling of the superior court
It did. Consent amendments said to be omitted from the order could not be raised where counsel approved the draft order before perfection.
The applicant contended that consent amendments to the application were not reflected in the perfected order. The court held this was without substance because the draft order was sent to the applicant's counsel for approval before perfection, no objections were raised at that stage, and the order appealed against sufficiently agreed with the orders made by the superior court.
Legal principles established
#- Failure to send a copy of the letter bespeaking proceedings to a respondent within a reasonable time does not, of itself, constitute a ground for striking out an appeal; the Court of Appeal will not introduce new heads for striking out appeals.
- A party who approves a draft order before perfection cannot later contend that the perfected order does not accord with the court's ruling.
Court orders
#- 1.The motion to strike out the notice of appeal and record of appeal is dismissed
- 2.Costs of the dismissed motion shall be costs in the appeal
- On appeal from
- High Court of Kenya at Nairobi, Milimani Commercial Court
- H.C.C.C. No. 412 of 2003
- Jurisdiction invoked
- Court of Appeal Rules (interlocutory motion under Rules 42(1) and 80 in a pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Quasar Ltd. v Kobil Petroleum Ltd.", Case Analysis (2006). Civil Appeal 30 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/48/eng@2006-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.