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Court of AppealStruck OutCivil Appeal No. 128 of 2006· [2010] KECA 93 (KLR)

Commissioner of Income Tax v Westmont Power (k) Ltd.

Court of Appeal of Kenya
22 October 2010
1,816 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out the tax authority's appeal, ruling that procedural rules must be followed even when lawyers invoke the 'overriding objective'.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (O'Kubasu, Ole Keiwua and Onyango Otieno, JJA) on a notice of motion by Westmont Power (K) Ltd, the respondent to an appeal brought by the Commissioner of Income Tax, seeking striking out of the appeal under Rules 42, 74, 80 and 81 of the Court of Appeal Rules. The application contended that the appeal was filed out of time, that the notice of appeal dated 7th February 2006 was defective, and that the Certificate of Delay was of no consequence. The High Court decision of Visram, J. of 30th January 2006 in Income Tax Appeal No. 626 of 2002 was under challenge. Counsel for the Commissioner conceded that the letter requesting certified copies of proceedings was not copied to the respondent as required, that the notice of appeal did not comply with the Rules (it had been drafted under the Income Tax Act rather than in Form D), and instead asked the court to invoke the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act. Applying its earlier decision in City Chemist v Oriental Commercial Bank, the court held that the overriding objective enriches rather than uproots established principles and cannot be invoked as a matter of course to excuse non-compliance with appellate rules. The court upheld the objection that the notice of appeal was incurably defective, struck out the notice of appeal and the record of appeal, and awarded costs of both the appeal and the application to Westmont Power (K) Ltd. The High Court decision therefore stands undisturbed. The binding proposition for lower courts is that strict compliance with the Court of Appeal Rules is not excused by generalized appeal to the overriding objective.

Key legal issues

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01

Effect of the overriding objective (sections 3A and 3B of the Appellate Jurisdiction Act) on strict compliance with appellate rules

Holding

The overriding objective does not displace established rules and principles; it cannot be used to excuse a party's failure to comply with the Court of Appeal Rules.

Reasoning

The court accepted, citing City Chemist v Oriental Commercial Bank, that the overriding objective must be given operational effect but is not a licence to uproot settled principles. The appellant conceded non-compliance with rule 74(6) and with the requirement to copy the request for certified proceedings to the respondent. The defect was therefore incurable and the appeal could not be salvaged by invoking sections 3A and 3B.

p. 4
02

Validity of the notice of appeal under rules 74(1), 74(3) and 74(6)

Holding

The notice of appeal did not comply with rule 74(6), which requires it to be substantially in Form D of the First Schedule and signed by or on behalf of the appellant; the defect was incurable.

Reasoning

The notice bore no note or stamp of the High Court Registrar evidencing lodgment, did not indicate whether the appeal was against the whole or part of the decision, did not state an address for service or persons to be served, and was drafted in a form foreign to the rules. Counsel for the appellant conceded the notice was given under the Income Tax Act rather than the Court's Rules.

p. 3
03

Computation of time for filing the appeal and the Certificate of Delay under rule 81(2)

Holding

Because the appellant did not send a copy of the letter requesting certified proceedings to the respondent or its advocates, it could not rely on rule 81(2) to exclude the time taken by the registrar in preparing the copies, and the Certificate of Delay was of no consequence.

Reasoning

Counsel for the appellant conceded the letter applying for certified copies was not copied to the applicant or its lawyers as the Rules require. Exclusion of delay in obtaining proceedings under rule 81(2) is conditional on that notification, so the appeal was out of time and the Certificate of Delay could not aid the appellant.

p. 2

Legal principles established

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  • The overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act does not sweep away established principles and cannot be invoked as a matter of course to excuse non-compliance with the rules regulating appeals to the Court of Appeal.
  • A notice of appeal must comply with rule 74(6) of the Court of Appeal Rules by being substantially in Form D of the First Schedule, and an incurably defective notice of appeal cannot be cured by reliance on the overriding objective.
  • The overriding objective enriches and does not uproot well-established principles and precedents governing the exercise of judicial discretion.

Court orders

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  1. 1.The notice of appeal dated 7th February 2006 is struck out
  2. 2.The record of appeal is struck out
  3. 3.Costs of the appeal and of the application are awarded to the applicant/respondent
On appeal from
High Court of Kenya at Nairobi
High Court of Kenya Income Tax Appeal No. 626 of 2002
Jurisdiction invoked
Rules 42, 74, 80 and 81 of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act (Cap. 9)

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, "Commissioner of Income Tax v Westmont Power (k) Ltd.", Case Analysis (2010). Civil Appeal No. 128 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/93/eng@2010-10-22

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