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Court of AppealOtherCivil Appeal (Appli) 36 of 2004· [2006] KECA 176 (KLR)

Patrick Olasa Wabidonge v Kobil Petroleum Limited [2006] KECA 176 (KLR)

Court of Appeal of Kenya
14 July 2006
SBS. E. O. BosireEGE. M. GithinjiJOJ. W. Onyango Otieno
1,576 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it can only strike out appeals under Rule 80's strict 30-day deadline, and rejected a late, second attempt as an abuse of process.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Bosire, Githinji and Onyango Otieno, JJA) on a preliminary objection to a notice of motion by Patrick Olasa Wabidonge seeking to strike out Kobil Petroleum Limited's Civil Appeal No. 36 of 2004, an appeal from Mbito J's judgment in H.C.C.C. No. 44 of 2000 (High Court, Bungoma, dated 24th August 2000). The applicant had earlier filed a first striking-out application complaining that the appeal was filed one day out of time; that application was compromised by a consent order of 5th July 2004 extending time and deeming the appeal properly filed. The second application, filed on 19th May 2004 while the first was still pending, complained of omissions from the record of appeal (missing proceedings and a defence exhibit). The court held that Rule 80 is the only provision empowering the Court to strike out an appeal; Rule 1(2) and section 3 of the Appellate Jurisdiction Act confer no such power. Construing 'proceedings' in Rule 80 ejusdem generis with 'notice of appeal' and 'appeal', the court held that omissions of proceedings and exhibits from the record are failures to take an essential step within Rule 80, so the application was subject to the 30-day proviso and, having been filed 16 days late, was incompetent. Further, Rule 80 envisages only one striking-out application, and the second application was an abuse of process. The court upheld the preliminary objection and struck out the application with costs to the respondent.

Key legal issues

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01

Whether the word 'proceedings' in Rule 80 covers the record of appeal requirements, including exhibits

Holding

The word 'proceedings' in Rule 80 is construed ejusdem generis with 'notice of appeal' and 'appeal' to denote the notice of appeal or the appeal, and omissions from the record of appeal are failures to take an essential step within the Rule.

Reasoning

The court held that 'proceedings' is a context-dependent term. Since Rule 80 permits striking out either before or after institution of the appeal, and since under Rules 81(1)(a) and 85(1)(d) and (f) an appeal is instituted by lodging a record containing the judge's notes and documentary exhibits, omission of proceedings or exhibits is a failure to take an essential step in the appeal and thus within Rule 80.

p. 3
02

Whether the application could be brought under Rule 1(2) and section 3 of the Appellate Jurisdiction Act

Holding

No; those provisions do not sanction striking out an appeal, and the application was not brought under the inherent-power provision (Rule 1(3)), so if it does not fall under Rule 80 the Court has no power to strike out the appeal.

Reasoning

The application was expressly based on Rule 1(2) and section 3 of the Appellate Jurisdiction Act, neither of which empowers striking out. The applicant disclaimed reliance on Rule 80, yet Rule 80 is the only rule conferring that power. Counsel's concession that the application was 16 days outside the 30-day proviso therefore rendered it incompetent.

p. 2
03

Whether the second application was res judicata or an abuse of process given the prior compromised application

Holding

The ground relied on in the second application existed when the first was filed and should have been raised there; filing the second application before the first was determined made it an abuse of the process of the Court.

Reasoning

The first application had been withdrawn by consent and an order validating the appeal and extending time was recorded. The grounds in the second application (omissions from the record) existed at the time of the first application and were deemed issues in it. Filing the second application on 19th May 2004, before the consent order of 5th July 2004, compounded the abuse.

p. 3

Legal principles established

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  • Rule 80 is the sole provision empowering the Court of Appeal to strike out a notice of appeal or an appeal, and the proviso's 30-day time limit is mandatory; an application not brought within Rule 80 or filed outside the 30 days is incompetent.
  • Failure to include the proceedings and documentary exhibits in a record of appeal amounts to a failure to take an essential step within the meaning of Rule 80, so such a ground is covered by Rule 80 and subject to its 30-day time limit.
  • Rule 80 envisages only one application to strike out a notice of appeal or appeal; a second application raising grounds existing when the first was filed, especially one filed before the first is determined, is an abuse of the process of the Court.

Court orders

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  1. 1.The Preliminary Objection is upheld
  2. 2.The application dated 19th May, 2004 is struck out with costs to the respondent

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 3
  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 1(3)
  • Court of Appeal RulesRule 74(1)
  • Court of Appeal RulesRule 80
  • Court of Appeal RulesRule 81(1)(a)
  • Court of Appeal RulesRule 85(1)(d) and (f)
On appeal from
High Court of Kenya at Bungoma
H.C.C.C. No. 44 of 2000
Jurisdiction invoked
Appellate Jurisdiction Act, section 3, and Court of Appeal Rules (Rule 80)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Patrick Olasa Wabidonge v Kobil Petroleum Limited [2006] KECA 176 (KLR)", Case Analysis (2006). Civil Appeal (Appli) 36 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/176/eng@2006-07-14

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