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Court of AppealPartially AllowedCivil Appeal (Application) No. 230 of 2009

MISTRY VALJI NARAN MULJI v VANTAGE ROAD TRANSPORTERS LTD & 6 others [2011] KECA 114 (KLR)

Court of Appeal of Kenya
7 October 2011
SBS.O. BosirePWP.N. WakiJOJ.W. Onyango Otieno
2,314 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because the notice of appeal rested on a High Court extension order made without jurisdiction.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Bosire, Waki and Onyango Otieno, JJ.A.) on two competing notices of motion arising from Civil Appeal No. 230 of 2009, an appeal by Vantage Road Transporters Ltd and its Managing Director Shahid Pervez Butt against orders of Mwera, J. of 29th July 2005 finding the company guilty of disobeying an injunction and committing its Managing Director to civil jail for three months. Mistry Valji Naran Mulji moved to strike out the notice and record of appeal, contending inter alia that the appeal rested on a High Court order extending time to file a notice of appeal granted after this Court had already refused similar leave. The appellants' own application to file a supplementary record of appeal was dismissed under rule 56(1) for non-appearance. On the striking-out application, the Court accepted that the omission of pleadings would previously have been fatal but was curable under the amended Appellate Jurisdiction Act and Rules. However, the Court held that the High Court's extension order was made without jurisdiction, since the matter of leave and extension of time had already been decided by this Court, rendering the notice of appeal invalid and the appeal incompetent - a defect of law incurable by the overriding objective. The appeal was struck out with costs of the appeal and of the application to the applicant. The decision binds lower courts on the exclusivity of this Court's jurisdiction over extensions of time to file notices of appeal.

Key legal issues

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01

Whether an appeal premised on a notice of appeal founded on a High Court extension order made without jurisdiction is competent

Holding

The appeal was incompetent and was struck out, because the notice of appeal on which it was based was invalid

Reasoning

This Court had struck out the first appeal for want of leave, dismissed an application for leave to file a notice of appeal out of time, and confirmed a single Judge's refusal of extension of time. The High Court's subsequent order extending time was therefore made without jurisdiction. An appeal based on such a void order fails at its root; the defect is incurable by the overriding objective.

p. 4
02

Whether omission of pleadings from the record of appeal was fatal

Holding

Although the omission of pleadings was fatal at the time the appeal was filed, amendments to the Appellate Jurisdiction Act and the Court's Rules cured it; the Court would have allowed a supplementary record

Reasoning

The Court acknowledged that as at the time of filing, the omission of the plaint, amended plaint and defences was fatal, but subsequent amendments to the Appellate Jurisdiction Act and the Court of Appeal Rules removed that rigidity, and a supplementary record would have been permitted notwithstanding dismissal of the supplementary-record application for non-appearance.

p. 4

Legal principles established

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  • Where this Court has declined leave to appeal or extension of time, the High Court has no jurisdiction to grant a further extension of time to file a notice of appeal; an appeal founded on such an order is incompetent.
  • Invalidity of the notice of appeal upon which an appeal is premised is a matter of law going to the root of the appeal and cannot be cured by the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act.

Court orders

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  1. 1.The notice of motion dated 27th January 2010 and filed on 28th January 2010 is dismissed pursuant to rule 56(1) of the Court's Rules, with costs to Mistry Valji Naran Mulji
  2. 2.Civil Appeal No. 230 of 2009 filed on 18th September 2009 is struck out
  3. 3.Costs of the appeal and costs of the notice of motion dated 15th October 2009 awarded to the applicant, Mistry Valji Naran Mulji
On appeal from
High Court of Kenya at Mombasa
H.C.C.S. No. 55 of 2005
Jurisdiction invoked
Appellate jurisdiction under the Appellate Jurisdiction Act and the Court of Appeal Rules (ruling on a notice of motion to strike out the notice and record of appeal)

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, "MISTRY VALJI NARAN MULJI v VANTAGE ROAD TRANSPORTERS LTD & 6 others [2011] KECA 114 (KLR)", Case Analysis (2011). Civil Appeal (Application) No. 230 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/114/eng@2011-10-07

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