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Court of AppealAllowedCivil Appeal (Appli) No. 27 of 2006

Protein & Fruits Processors Limited v Enkasiti Flower Growers

Court of Appeal
30 May 2008
ROR. S. C. OmoloPhilip Kiptoo TunoiP. K. TunoiDAD. K. S. Aganyanya
1,694 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because no law gave the company a right to appeal—always confirm appeal rights and obtain leave first.

What this practically means

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Executive summary

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Enkasiti Flower Growers applied under rule 80 of the Court of Appeal Rules to strike out Protein & Fruits Processors Limited's Notice of Appeal and Record of Appeal arising from a High Court ruling (Kubo, J., 7th February 2006) in H.C. Misc. Civil Case No. 487 of 2005, which extended time under the proviso to section 8(1) of the Land Control Act for the applicant to seek land control board consent to a Kshs.31,000,000 sale of 32.74 hectares. The High Court later refused review on 13th October 2006, prompting the appellant's Notice of Appeal. Before the Court of Appeal (Omolo, Tunoi and Aganyanya, JJA), the sole issue argued was whether the appellant had a right of appeal. The court held that appeals as of right lie only in respect of orders listed in section 75 of the Civil Procedure Act and Order XLII of the Civil Procedure Rules; otherwise leave must be sought and obtained in the court of first instance. The Land Control Act confers appeal rights only from land board decisions to the Provincial and Central Land Control Appeals Boards, with the Central Board's decision final under section 13(2), and does not envisage court litigation over board consents. Applying Haryan Singh Bhogal v Jadva Karsan and Rafiki Enterprises Limited v Kingsway Tyres, the court held no right of appeal existed and that the appellant had produced no evidence that leave was sought or granted. The application was allowed, the Notice of Appeal and appeal struck out, with costs to the appellant.

Key legal issues

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01

Whether an appeal lies to the Court of Appeal against a refusal to review an order extending time under the proviso to section 8(1) of the Land Control Act

Holding

No appeal lies as of right; the Land Control Act confers appeal rights only from land board decisions to the Provincial and Central Land Control Appeals Boards, and the decision of the Central Land Control Appeals Board is final.

Reasoning

Section 75 of the Civil Procedure Act and Order XLII of the Civil Procedure Rules list orders appealable as of right; in any other case leave of the court of first instance is required. The Land Control Act's own appeal provisions (sections 11, 12, 13(2)) run from land board decisions to the appeals boards only. The appellant neither had a statutory right of appeal nor produced evidence that leave was sought or granted.

p. 3
02

Whether the appellant company, lacking a lawfully constituted board of directors, could competently institute the appeal

Holding

The court did not determine this ground, resting its decision on the absence of a right of appeal.

Reasoning

Although raised in the application and affidavit evidence, the court heard parties only on whether the appellant had a right of appeal and disposed of the matter on jurisdictional grounds, making the board-of-directors issue unnecessary to decide.

p. 2

Legal principles established

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  • A right of appeal exists only where conferred by statute, and must be strictly complied with; it cannot be implied or inferred.
  • Where no appeal lies as of right, leave to appeal must be sought and obtained in the court of first instance; failure to obtain it renders the appeal incompetent.
  • The Land Control Act does not envisage court litigation of applications relating to land control board consents in respect of controlled transactions.

Court orders

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  1. 1.The application by Notice of Motion dated and filed on 7th April 2006 was allowed
  2. 2.The Court held it had no jurisdiction to entertain the Notice of Appeal dated 13th February and filed on 15th February 2006 or the appeal filed on 8th March 2006
  3. 3.The Notice of Appeal and the appeal were struck out
  4. 4.Costs of the Notice of Motion and the appeal to be borne by the appellant
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Civil Case No. 487 of 2005
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (application to strike out Notice of Appeal and Record of Appeal); jurisdiction of the Court of Appeal to entertain the underlying appeal predicated on sections 11 and 12 of the Land Control Act and section 75 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Protein & Fruits Processors Limited v Enkasiti Flower Growers", Case Analysis (2008). Civil Appeal (Appli) No. 27 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/201/eng@2008-05-30

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