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Court of AppealStruck OutCriminal Application No. 2 of 2015 (UR 1/2015)· [2015] KECA 187 (KLR)

Feisal Mohamed Ali Alias Feisal Shahbal v Republic [2015] KECA 187 (KLR)

Court of Appeal of Kenya
4 December 2015
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
3,151 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out a bail application because the applicant filed it without first lodging a notice of appeal — procedure is jurisdiction.

What this practically means

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Executive summary

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The applicant, charged before the Chief Magistrate's Court at Mombasa with offences under the Wildlife Conservation and Management Act relating to 314 elephant tusks, sought bail pending trial through an omnibus motion filed in the Court of Appeal on 3rd November 2015. The motion combined an application for extension of time to file a notice of appeal against the High Court's rulings cancelling his bail, with a substantive prayer for release on bail or bond. The respondent raised a preliminary objection on jurisdiction, which the Court heard and determined in limine. The Court held that a notice of appeal lodged under rule 59 of the Court of Appeal Rules is the device that invokes its appellate jurisdiction under Article 164(3) of the Constitution; rule 5(2)(b) relief presupposes a lodged notice of appeal. The applicant's own pending extension-of-time application amounted to an admission that no notice of appeal existed, and he declined the Court's invitation to first prosecute that application. The Court rejected the submission, advanced by counsel for the applicant, that requiring a notice of appeal unconstitutionally constricted the right of appeal, holding that rules of procedure regulating constitutionally conferred jurisdiction are valid unless shown to be arbitrary and devoid of rational or legitimate basis. The Court further held that an incompetent appeal or application divests a court of jurisdiction. The preliminary objection was upheld, the motion was struck out as fatally incompetent, with no orders on costs.

Key legal issues

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01

Whether the Court can entertain a rule 5(2)(b) application without a lodged notice of appeal

Holding

No - the notice of appeal institutes the appeal and invokes the Court's appellate jurisdiction; without one the application is fatally incompetent

Reasoning

Rule 59(1) requires a notice of appeal within fourteen days, and the notice 'shall institute the appeal.' Rule 2 defines 'appeal' to include an intended appeal. A party invoking rule 5(2)(b) must have lodged a notice of appeal evincing intention to appeal. Here the applicant's own pending extension-of-time application admitted no notice of appeal existed, and he declined the opportunity to regularize position.

p. 3
02

Whether requiring a notice of appeal unconstitutionally limits the right of appeal under Article 164(3)

Holding

No - rules of procedure regulating exercise of jurisdiction are constitutional unless shown to be arbitrary or devoid of rational or legitimate basis

Reasoning

The Court held that conferral of jurisdiction does not render every application competent; procedural requirements serve legitimate constitutional values including the opposite party's right to know the case to meet, fair opportunity to prepare, and timely resolution of disputes. Taken to its logical conclusion, the applicant's argument would render all procedural rules, including limitation periods, unconstitutional.

p. 3

Legal principles established

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  • A notice of appeal lodged under rule 59 is the device that invokes the appellate jurisdiction of the Court of Appeal; without it, an application under rule 5(2)(b) is incompetent
  • Procedural rules regulating the exercise of constitutionally conferred jurisdiction are not unconstitutional limitations of that jurisdiction unless shown to be arbitrary and devoid of rational or legitimate basis
  • An incompetent appeal or application divests a court of jurisdiction to determine the controversies embodied in it

Court orders

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  1. 1.The applicant's motion on notice filed on 3rd November 2015 is struck out
  2. 2.No orders on costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 164(3)
  • Constitution of Kenya, 2010Article 49(1)(h)
  • Court of Appeal Rulesrule 2
  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 5(1)
  • Court of Appeal Rulesrule 5(2)(a)
  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 53(1)
  • Court of Appeal Rulesrule 53(2)(b)
  • Court of Appeal Rulesrule 55
  • Court of Appeal Rulesrule 59(1)
  • Court of Appeal Rulesrule 59(2)
  • Wildlife Conservation and Management Act, No. 47 of 2013sections 84(1), 92, 95

Cases cited (5)

  • JOSEPH LIMO & 86 OTHERS V. ANN MERZ
    C. A. NO. 295 OF 1998
  • SAFARICOM LTD. V. OCEAN VIEW BEACH HOTEL LTD. & 3 OTHERS
    CA NO 325 of 2009
  • ANAMI SILVERSE LISAMULA V. IEBC & 2 OTHERS
    SC PETITION NO. 9 OF 2014
  • BWANA MOHAMED BWANA V. SILVANO BORU BONAYA & 2 OTHERS
    SC PETITION NO. 15 OF 2015
  • OCHEJA EMMANUEL DANGANA V HON. ATTAI AIDOKO ALO USMAN & OTHERS
    SC 480/2011 and SC 11/2012 (CONSOLIDATED)
On appeal from
High Court of Kenya at Mombasa
Mombasa H.C. Misc App. No. 39 of 2015 (and Misc. Criminal Application No. 75 of 2015)
Jurisdiction invoked
Article 164(3) of the Constitution; rules 4, 5(2)(b) and 59 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, "Feisal Mohamed Ali Alias Feisal Shahbal v Republic [2015] KECA 187 (KLR)", Case Analysis (2015). Criminal Application No. 2 of 2015 (UR 1/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/187/eng@2015-12-04

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