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Court of AppealPartially AllowedCivil Appeal (Application) No. 68 of 2007· [2010] KECA 133 (KLR)

Westmont Power (Kenya) Ltd v Sebhan Enterprises Ltd [2010] KECA 133 (KLR)

Court of Appeal
30 July 2010
1,102 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out a late appeal, confirming you must file your record within 60 days—waiting for certified proceedings is no excuse.

What this practically means

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Executive summary

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The Court of Appeal (Waki, Onyango Otieno and Visram, JJ.A) determined a notice of motion by Westmont Power (Kenya) Limited seeking to strike out Sebhan Enterprises Limited's notice of appeal dated 27th March 2006 and record of appeal filed 20th April 2007, filed under rules 42(1) and 80 of the Court of Appeal Rules. The appeal targeted a ruling of Azangalala J. delivered on 13th March 2006 in HCCC No. 239 of 2005 (O.S), in which a preliminary objection was upheld and the originating summons struck out with costs. Two grounds were advanced: that the appeal was lodged out of time and without leave contrary to rule 81(1), and that the decree was not extracted in compliance with Order XX, Rule 7 of the Civil Procedure Rules. The appellant did not appear at the hearing despite a consent hearing date; there was no reply to the supporting affidavit of Sheetal Kapila. On the timeliness issue, the unchallenged certificate of delay showed the proceedings were collected on 15th February 2007, making the filing on 20th April 2007 sixty-three days later, beyond the sixty days prescribed by rule 81(1). The court reiterated that certified copies of proceedings are not necessary for mounting an appeal and held the appellant could not invoke the proviso to rule 81(1). On extraction of the decree, the court deplored the omission but declined to strike out on that basis, since the decree reflected the superior court's ruling and the defect was curable under the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act. The appeal was declared incompetent and struck out with costs to the applicant.

Key legal issues

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01

Institution of appeal out of time under rule 81(1)

Holding

The appeal was incompetent because the record was filed 63 days after receipt of the copies of proceedings, exceeding the 60-day limit, and the appellant could not invoke the proviso to rule 81(1).

Reasoning

The certificate of delay, unchallenged, showed collection of proceedings on 15th February 2007 while the record was filed on 20th April 2007 - 63 days later. Proceedings were ready for certification by 29th September 2006 but no action was taken until 22nd January 2007. Much of the delay arose from awaiting certified copies, which are not necessary for mounting an appeal.

p. 2
02

Extraction of the decree contrary to Order XX, Rule 7 of the Civil Procedure Rules

Holding

Although the court deplored the omission, the defect was not fatal since the decree reflected the ruling of the superior court and could be cured under the overriding objective.

Reasoning

Counsel for the applicant confirmed the decree in the record of appeal reflected the superior court's ruling. The court declined to take precipitate action on the allegation that the applicant's advocates were not involved in extraction, treating it as curable under sections 3A and 3B of the Appellate Jurisdiction Act.

p. 2

Legal principles established

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  • An appeal to the Court of Appeal must be instituted within sixty days of the lodging of the notice of appeal, and a party who delays cannot claim the benefit of the proviso to rule 81(1).
  • Certified copies of the proceedings are not necessary for instituting an appeal, so waiting for them does not excuse delay in filing the record of appeal.
  • Defects such as non-involvement of counsel in extracting a decree may be cured by the overriding objectives in sections 3A and 3B of the Appellate Jurisdiction Act.

Court orders

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  1. 1.The notice of appeal dated 27th March 2006 and the record of appeal filed on 20th April 2007 are struck out
  2. 2.Costs of the application awarded to the respondent/applicant
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 239 of 2005 (O.S)
Jurisdiction invoked
Rules 42(1) and 80 of the Court of Appeal Rules, made under section 5 of the Appellate Jurisdiction 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, "Westmont Power (Kenya) Ltd v Sebhan Enterprises Ltd [2010] KECA 133 (KLR)", Case Analysis (2010). Civil Appeal (Application) No. 68 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/133/eng@2010-07-30

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