INTEX CONSTRUCTION LTD v NATIONAL HOUSING CORPORATION [2009] KECA 151 (KLR)
The bottom line
#Kenya's Court of Appeal struck out Intex Construction's appeal because it was filed six months late without permission, warning parties to track appeal deadlines carefully.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal was lodged within the prescribed 60-day period under rule 81, with or without the benefit of the certificate of delay
- 2.Whether an appeal lies to the Court of Appeal from a decision of the superior court made under section 35 of the Arbitration Act 1995
Key legal issues
#Computation of the 60-day period for lodging an appeal under rule 81 and the effect of a certificate of delay
Only the time the Registry takes to prepare and deliver copies, as certified in a certificate of delay, is excluded; time taken to certify copies of proceedings, judgments or rulings is not excluded because certified copies are not needed for the record of appeal. The appellant applied for irrelevant documents and could not rely on the certificate of delay; the appeal was lodged about six months out of time.
The court applied the proviso to rule 81 strictly. The appellant had requested the wrong (certified) proceedings and ruling, documents not mandated by the Rules for the record of appeal. The certificate of delay therefore covered irrelevant documents and could not extend time. Without leave under rule 4 obtained for late filing, the appeal could not be sustained and was struck out on this ground alone.
Whether an appeal lies to the Court of Appeal from a decision made under section 35 of the Arbitration Act 1995
The court expressly declined to determine this jurisdictional question, leaving it open for debate in a future case, as the appeal had already been struck out.
Counsel were divided: the respondent urged that no appeal lies from a decision under section 35, while the appellant contended otherwise. The court noted divergent earlier views in Kenya Shell Ltd v Kobil Petroleum Ltd, where two judges held section 35 does not oust the Court's jurisdiction and one disagreed. Because the appeal was struck out on the timeliness ground, the issue was academic and the court declined to resolve it.
Legal principles established
#- Time needed for certifying copies of proceedings, judgments or rulings is not excluded when computing the 60-day period for lodging an appeal under rule 81, because the record of appeal does not require certified copies; only the Registry's preparation and delivery time, as certified in a certificate of delay, is excluded
- An appeal filed out of time without the requisite leave under rule 4 of the Court of Appeal Rules is fatally defective and must be struck out
Court orders
#- 1.Civil Appeal No. 143 of 2000 ordered struck out
- 2.Costs of the appeal awarded to the respondent (NHC)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C. Misc. Application No. 131 of 1996
- Jurisdiction invoked
- Appeal to the Court of Appeal from a High Court ruling under the Arbitration Act, 1995 (appealability itself contested; leave required under rule 4 of the Court of Appeal Rules)
Relief refused
#Sustenance or continuation of the appeal despite it being lodged out of time
The appeal was lodged more than six months out of time and the certificate of delay concerned documents not mandated by the Rules; no leave under rule 4 had been obtained
Determination of whether an appeal lies from a decision under section 35 of the Arbitration Act 1995
Having struck out the appeal, the court declined to decide the jurisdictional question, deeming it academic
Costs
Appeal struck out with costs to the respondent (NHC)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, we order that Civil Appeal No. 143 of 2000 be and is hereby ordered struck out with costs to the respondent (NHC).
It must follow, therefore, that as the appeal was lodged out of time without the requisite leave which might have been obtained under rule 4 of the Rules of the Court, this appeal cannot be sustained.
However, time needed for certifying copies of proceedings, judgments or rulings is not to be excluded in computing such time for the simple reason that the record of appeal does not need certified copies of proceedings, judgments or rulings.
On this ground alone, the appeal is fatally defective and is hereby ordered struck out.
Issues in the judgment
#The judgment describes the court as having 'dismissed the appeal' in its discussion of the jurisdictional issue while the final order is that the appeal is 'struck out'; the two terms are used interchangeably without explanation.
The judgment cites Kenya Shell Ltd v Kobil Petroleum Ltd as Civil Application No. 57 of 2006, yet this ruling was delivered on 9 October 2009 in an appeal lodged in 2000; the citation year appears consistent but the unreported reference could not be independently verified from the judgment text alone.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "INTEX CONSTRUCTION LTD v NATIONAL HOUSING CORPORATION [2009] KECA 151 (KLR)", Case Analysis (2009). Civil Appeal (Appli) 143 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/151/eng@2009-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.