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Court of AppealStruck OutCivil Appeal No. 296 of 2001 (application dated 13th February 2009)· [2009] KECA 300 (KLR)

AMEER KASSIM LAKHA v MISTRY JADVA PARBAT COMPANY LIMITED & 2 OTHERS [2009] KECA 300 (KLR)

Court of Appeal of Kenya
15 May 2009
JOJ. W. Onyango Otieno
3,435 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an attempt to skip serving a party, confirming strict appeal deadlines and service rules apply.

What this practically means

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Executive summary

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This is a ruling by Onyango Otieno, JA, of the Court of Appeal at Nairobi, dated 15th May 2009, on a Notice of Motion by Ameer Kassim Lakha, the applicant/appellant in Civil Appeal No. 296 of 2001. The underlying appeal challenged Hewett, J.'s ruling of 25th May 2001 dismissing chamber summons seeking to strike out the plaint against the applicant. On 13th October 2008 the full Court adjourned the appeal because Three A's Investments Limited, the fourth defendant in the superior court, had neither been joined nor served with the notice of appeal or record of appeal. The applicant then sought an order dispensing with service of those documents on Three A's Investments Limited, arguing that the same firm of advocates acted for both, that the company was indifferent to the outcome, and that it did not object to service out of time. The first respondent opposed, contending the application fell outside the proviso to rule 76(1), which requires such applications within seven days of lodging the notice of appeal and applies only to persons who took no part in the superior court proceedings. The court agreed: Three A's Investments Limited had jointly filed the striking-out application and was directly affected by the appeal; shared representation could not blur their separate identities. The applicant should instead have sought extension of time under rule 4, which the application never properly invoked. The court also declined to exercise inherent powers, holding that its jurisdiction is limited by written law and that a clear remedy existed under rule 4. The application was struck out with costs to the first respondent.

Key legal issues

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01

Proper foundation of the application

Holding

Although rule 4 was cited, the application was substantively one under rule 76 seeking dispensation with service, and did not meet the prerequisites of rule 4

Reasoning

The court examined the prayers and found only one sought: dispensation with service of the notice of appeal and record of appeal. Despite citing rule 4, the applicant never pleaded the circumstances of the delay as rule 4 requires. The court therefore treated the application as premised on rule 76, under which the relief sought could alone be available.

p. 4
02

Whether Three A's Investments Limited was directly affected and took part in the proceedings

Holding

Three A's Investments Limited was a party who took part in the superior court proceedings and was directly affected by the appeal, hence had to be served under the main body of rule 76(1)

Reasoning

The chamber summons of 15th February 2001, whose dismissal gave rise to the appeal, was filed jointly by the applicant and Three A's Investments Limited through the same advocates, and the fourth defendant was cited throughout. Service on it could not be dispensed with under the proviso, which applies only to persons who took no part in the superior court proceedings.

p. 4
03

Inherent jurisdiction

Holding

A Judge of the Court of Appeal sitting alone cannot invoke inherent powers to override express Rules where a clear legal remedy (rule 4 extension of time) exists

Reasoning

Counsel asked the court to fall back on inherent powers. The court held its jurisdiction is limited by written law, that rule 1(2) does not permit ignoring the Rules, and that even if inherent powers existed they apply only where no clear legal remedy is provided. Here rule 4 would have catered for the applicant's situation.

p. 5

Legal principles established

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  • Dispensation with service under the proviso to rule 76(1) may only be sought within seven days of lodging the notice of appeal; thereafter an extension of time under rule 4 is required
  • A single Judge of the Court of Appeal has no inherent jurisdiction to bypass the express provisions of the Court of Appeal Rules; jurisdiction is limited by written law
  • Separate legal parties to a suit must each be served with the notice of appeal even where they are represented by the same firm of advocates

Court orders

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  1. 1.The application dated 13th February 2009 was struck out
  2. 2.Costs of the application were awarded to the first respondent

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3(2)
  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 76(1) and proviso
  • Court of Appeal RulesRule 80 (proviso)
  • Court of Appeal RulesRule 87(2)
  • Civil Procedure Rules (former)Order 6 rule 13(1)(b) and (d)
On appeal from
High Court of Kenya at Nairobi
High Court Civil Case No. 2513 of 1997 (ruling by Hewett, J. dated 25th May 2001)
Jurisdiction invoked
Section 3(2) of the Appellate Jurisdiction Act and Rules 1(2), 4 and 76 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "AMEER KASSIM LAKHA v MISTRY JADVA PARBAT COMPANY LIMITED & 2 OTHERS [2009] KECA 300 (KLR)", Case Analysis (2009). Civil Appeal No. 296 of 2001 (application dated 13th February 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/300/eng@2009-05-15

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