Telkom Kenya Ltd v Jeremiah Achila Gogo & another [2007] KECA 289 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that when a law 'deems' a company's successor to take over its lawsuits, no formal substitution application is needed to enforce judgment against the successor.
What this practically means
#Executive summary
#Key legal issues
#Effect of the deeming provision in Legal Notice No. 132 of 2001 on pending suits against KPTC
The deeming provision automatically vested the respondent's suit in Telkom Kenya Ltd as successor without any need for a formal substitution application; actions taken on record are deemed taken against the correct party.
Parliament, through the Third Schedule to the Kenya Communications Act, intended to clear uncertainty as to who would be plaintiff or defendant in pending proceedings upon the split of KPTC. Applying Viscount Simonds' definition of 'deemed', the notice brought in the successor corporation which would otherwise have been excluded. Although a substitution application would have been prudent, its absence did not vitiate the proceedings or the right to execute.
Whether the appellant suffered prejudice from the failure to apply for substitution
The appellant did not suffer prejudice because it knew or ought to have known of the suit; its Corporation Secretary had acted for KPTC in the suit.
The High Court had found no prejudice because Mr. P.B. Jilani, the Corporation Secretary who entered appearance and filed defence for KPTC, later became the appellant's Corporation Secretary. The split of KPTC was an internal matter, and the schedule of pending cases in the Legal Notice must have been compiled from KPTC's records. The court affirmed the High Court's conclusion as one it was entitled to reach.
Applicability of Order 23 rule 9 of the Civil Procedure Rules
Order 23 rule 9 was of limited assistance because it addresses assignment, creation or devolution of interest and cases of death, bankruptcy or marriage, none of which strictly arose here; and the duty to apply for substitution lay on both parties in any event.
The court observed that the Civil Procedure Act and Rules contain no clear substitution provisions except in cases of death, bankruptcy and marriage. Order 23 rule 9 is silent on who should apply for leave, but the party seeking the court's assistance is the one to apply. The duty lay on both parties, so the appellant could not complain that only the respondent should have applied.
Legal principles established
#- Where a transitional legal notice deems pending legal proceedings instituted by or against a dissolved statutory corporation to have been instituted by or against its successor, the successor is brought in as the proper party by operation of law, and the absence of a formal application for substitution does not disentitle a decree-holder from executing against the successor.
- The primary function of the word 'deemed' in legislation is to bring in something which would otherwise be excluded.
Court orders
#- 1.Appeal dismissed
- 2.Appellant to pay costs of the appeal
- On appeal from
- High Court of Kenya, Kisii
- H.C.C.C. No. 147 of 1999
- Jurisdiction invoked
- First appellate jurisdiction over the High Court ruling in objection proceedings (Civil Appeal 153 of 2004)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Telkom Kenya Ltd v Jeremiah Achila Gogo & another [2007] KECA 289 (KLR)", Case Analysis (2007). Civil Appeal 153 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/289/eng@2007-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.