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Court of AppealPartially AllowedNotice of Motion dated 9th August, 2011 filed 4th October, 2011· [2012] KECA 126 (KLR)

SOMKEN PETROLEUM COMPANY LIMITED V NATIONAL OIL CORPORATION OF KENYA LIMITED & 3 OTHERS [2012] KECA 126 (KLR)

Court of Appeal of Kenya
21 June 2012
WKW. Karanja
951 words in judgment
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The bottom line

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Kenya's Court of Appeal excused a few days' late service of a notice of appeal and allowed service by post on people holding disputed property.

What this practically means

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Executive summary

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This was an unopposed notice of motion dated 9th August 2011, brought under Rules 4 and 77 of the Court of Appeal Rules by Somken Petroleum Company Limited, the first defendant in Kakamega High Court Civil Case No. 190 of 2010. Its application for stay of proceedings pending arbitration was dismissed by a ruling of 4th July 2011, which it intended to appeal. The notice of appeal was served late on the first and fourth respondents, and the 2nd and 3rd respondents, Julia Mutumbi and Fabian Lijoodi, could not be traced for personal service as they had taken no part in the superior court proceedings. W. Karanja, JA, delivering the judgment of the court at Kisumu on 21st June 2012, found the delay of only a few days sufficiently explained and the application unopposed. The court held that although the 2nd, 3rd and 4th respondents were technically not parties to the application giving rise to the ruling, they would be affected by any arbitral proceedings concerning the property physically in their hands, and it was important they be served so they could decide whether to participate in the appeal. The court allowed prayers 1, 2 and 4: time for filing and serving the notice of appeal was extended and deemed proper, and substituted service by post on the 2nd and 3rd respondents at their address in Kakamega High Court Succession Cause No. 169 of 2010 was permitted. Costs of the application were ordered to be in the appeal. As an interlocutory extension ruling, no decision below was reviewed or disturbed; the binding takeaway concerns the court's liberal, justice-oriented approach to short unexplained-delay questions and substituted service where non-parties may nonetheless be affected by an appeal.

Key legal issues

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01

Extension of time for service of notice of appeal

Holding

Extension granted because the delay was only a few days and was sufficiently explained.

Reasoning

The judge considered the affidavits and found the delay of only a few days had been sufficiently explained. The application was unopposed and the court was satisfied the orders sought would not prejudice the respondents. The interest of justice favoured extension to enable the intended appeal against the ruling refusing stay of proceedings pending arbitration to proceed.

p. 3
02

Service on non-participating defendants

Holding

Although the 2nd, 3rd and 4th respondents were technically not parties to the application that produced the impugned ruling, they would be affected by arbitral proceedings concerning the property in their hands, so service by post was ordered.

Reasoning

The court read the superior court ruling and agreed that although the 2nd, 3rd and 4th respondents were not parties to the application, they would be affected by any arbitral proceedings affecting the property physically in their hands. Service by post at their address in the succession cause would enable them to make an informed decision on participation in the appeal without prejudice.

p. 3

Legal principles established

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  • Short delays in serving a notice of appeal under Rule 77 may be excused where adequately explained and where extension does not prejudice the respondents; persons not party to the arbitration-related proceedings but holding the subject property should nonetheless be served (by post if they cannot be traced) so they may decide whether to join the appeal.

Court orders

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  1. 1.Time for filing the application extended and the application deemed properly filed (prayer 1)
  2. 2.Time for service of the notice of appeal on the 1st and 4th respondents extended to 22nd July 2011 and 28th July 2011 respectively, service deemed proper (prayer 2)
  3. 3.Leave granted to serve the 2nd and 3rd respondents with the notice of appeal and record of appeal through their postal address given in Kakamega High Court Succession Cause No. 169 of 2010 (prayer 4)
  4. 4.Costs of the application to be in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 77(1)
On appeal from
High Court of Kenya
High Court Civil Case No. 190 of 2010 (Kakamega)
Jurisdiction invoked
Rules 4 and 77 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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Cite this brief

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Cite this brief

Caselaw, "SOMKEN PETROLEUM COMPANY LIMITED V NATIONAL OIL CORPORATION OF KENYA LIMITED & 3 OTHERS [2012] KECA 126 (KLR)", Case Analysis (2012). Notice of Motion dated 9th August, 2011 filed 4th October, 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/126/eng@2012-06-21

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