Kariuki & Gathecha Resources Ltd v Lucky Summer Estates Ltd & 3 others [2006] KECA 227 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an application because the company cited the wrong law and hadn't filed a notice of appeal first.
What this practically means
#Executive summary
#Key legal issues
#Whether citation of the wrong statutory provision (Section 5(2)(b) of the Appellate Jurisdiction Act instead of rule 5(2)(b) of the Court of Appeal Rules) rendered the application incompetent
The Court held that a litigant must cite the correct provision; it would take a serious view and may strike out an application that omits or erroneously cites the provision, unless the correct provision is clearly discernible and no prejudice is caused. Here, even assuming the application was under rule 5(2)(b), it was incompetent because no notice of appeal had been filed as required by rule 74.
The Court's jurisdiction is conferred by statute, and the relevant provision is what invokes it. Section 5(2)(b) of the Appellate Jurisdiction Act deals with rule-making for practicing and representation, and confers no power to grant the reliefs sought. Even reading the application as one under rule 5(2)(b) of the Court of Appeal Rules, rule 74 requires a notice of appeal to be filed first, which the applicant had not done. The application was therefore incompetent and was struck out with costs to the 1st, 2nd and 4th respondents.
Whether the Court of Appeal had jurisdiction to grant the various prayers sought at the interlocutory stage
The Court held it lacked jurisdiction to grant a stay of execution, commit a person to civil jail, declare a suit res judicata and strike it out, or direct that a Certificate of Delay was adequate, on the provision invoked.
The provision actually cited by the applicant, Section 5(2)(b) of the Appellate Jurisdiction Act, merely empowers the making of rules of court regulating the right of practice and representation, and does not empower the Court to grant any of the four categories of relief sought. The reliefs could only have been sought, if at all, under rule 5(2)(b) of the Court of Appeal Rules, and only after compliance with rule 74.
Legal principles established
#- A litigant must cite the correct statutory provision to invoke the Court's jurisdiction, and the Court may strike out an application that totally omits or erroneously cites the relevant provision, unless the provision is clearly discernible from the nature of the application and causes no prejudice.
- The Court of Appeal's jurisdiction is conferred by statute, and it is by citing the relevant provision that a litigant invokes that jurisdiction.
- An application for stay of execution, injunction or stay of further proceedings under rule 5(2)(b) of the Court of Appeal Rules can only be brought after filing a notice of appeal in accordance with rule 74.
Court orders
#- 1.The application is struck out with costs to the 1st, 2nd and 4th respondents
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 2587 of 1994
- Jurisdiction invoked
- Application expressed to be brought under Section 5(2)(b) of the Appellate Jurisdiction Act (Cap 9), Laws of Kenya; the Court identified the proper basis as rule 5(2)(b) of the Court of Appeal Rules read with rule 74
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Caneland Limited v Africa Banking Corporation Limited [2016] KEELC 696 (KLR)[2016] KEELC 696 (KLR)13 Jul 2016
Cite this brief
#Cite this brief
Caselaw, "Kariuki & Gathecha Resources Ltd v Lucky Summer Estates Ltd & 3 others [2006] KECA 227 (KLR)", Case Analysis (2006). Civil Appeal (Application) No. 106 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/227/eng@2006-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.