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Court of AppealPartially AllowedCivil Appeal No. 10 of 2015· [2015] KECA 411 (KLR)

Salama Beach Hotel Ltd v Rossi (Civil Appeal 10 of 2015) [2015] KECA 411 (KLR)

Court of Appeal
30 September 2015
AMAsike MakhandiaWilliam OukoW. OukoKMK. M'inoti
2,093 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 Salama Beach Hotel's appeal because it was filed months late and missing a certified court order.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Malindi (Makhandia, Ouko and M'inoti, JJ.A) allowing the respondent Mario Rossi's application to strike out the record of appeal filed by Salama Beach Hotel Limited against a High Court ruling of Angote, J. dated 9th May 2014, which awarded the respondent Kshs 14 million and costs as the value of a villa the appellant had agreed in a consent order to build for him. The respondent moved under Rules 82(1) and 84 of the Court of Appeal Rules contending that the record of appeal, filed on 25th February 2015, was out of time and lacked a certified copy of the order appealed from. The appellant conceded it never served a letter bespeaking the proceedings and did not address the missing certified order. The Court held that failure to apply for and serve the letter bespeaking proceedings within 30 days disentitles an appellant from the proviso to rule 82(1), so the 60-day period ran from the notice of appeal filed 16th May 2014, expiring 15th July 2014 - some seven months before the record was filed. It further held that inclusion of an uncertified order is as fatal as complete non-inclusion, since certification confirms authenticity, and that the overriding objective cannot cure such omissions, following its own precedents and the Supreme Court's decision in Bwana Mohamed Bwana. The Court also rejected the objection to the advocate-sworn affidavit, holding he deponed only to matters within his personal knowledge. The appeal was struck out as incompetent, with costs to the respondent. The decision binds subordinate courts and the High Court on the mandatory character of the Court of Appeal Rules' timelines and document requirements.

Key legal issues

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01

Effect of failure to serve a letter bespeaking proceedings on computation of the 60-day period under rule 82(1)

Holding

Failure to apply for and serve the letter bespeaking proceedings within 30 days disentitles the appellant from the benefit of the proviso to rule 82(1); the appeal must be filed within 60 days of the notice of appeal, and an appeal filed outside that period is incompetent.

Reasoning

The timelines in the Rules give effect to Article 159(2)(b) that justice shall not be delayed. The proviso excluding time taken to prepare proceedings applies only where the appellant applied in writing within 30 days and served the application. Rule 82(2) expressly disentitles defaulting appellants from that benefit. This Court's prior decisions (Christine Wangari Munga, Mwanzighe, Vekaria, Development Bank of Kenya) refuse to deploy the overriding objective to void prescribed timelines.

p. 3
02

Effect of failure to include a certified copy of the order appealed from under rule 87(1)(h)

Holding

A record of appeal lacking a certified copy of the order appealed from is incompetent; certification goes to authenticity, so an uncertified order is as bad as none at all. Rule 88 allows the omission to be cured by a supplementary record, but the appellant did nothing.

Reasoning

Following Floris Pierro v Giancarlo Falasconi, an appeal lies only against a decree or order, and omission of the order is fatally defective and incurable even under the overriding objective. Here the order was included but uncertified; since certification confirms authenticity, an uncertified order is equivalent to non-inclusion. The Supreme Court in Bwana Mohamed Bwana affirmed that omission of mandatory documents renders an appeal incompetent and a court cannot exercise jurisdiction where prior lawful requirements are unfulfilled.

p. 3
03

Validity of an affidavit in support of a striking-out application sworn by the respondent's advocate

Holding

An advocate may swear an affidavit on formal or non-contentious matters within his personal knowledge under Rule 9 of the Advocates (Practice) Rules; no legitimate complaint arises where the deponent stated only matters within his knowledge as counsel on record.

Reasoning

Ordinarily counsel should avoid swearing affidavits on contentious issues where cross-examination may arise (Pattni v Ali). But Rule 9 of the Advocates (Practice) Rules permits affidavits on formal or non-contentious matters. Mr. Munyithya deponed only to facts within his personal knowledge as counsel on record - non-service of the bespeaking letter and absence of a certified order - and even the appellant would merely have repeated what he was told by counsel.

p. 2

Legal principles established

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  • An intended appellant who fails to apply in writing for proceedings and serve the letter bespeaking proceedings within 30 days cannot rely on the proviso to rule 82(1) to exclude the time taken to prepare proceedings, and must file the appeal within 60 days of the notice of appeal.
  • Inclusion of an order appealed from that is not certified is as fatally defective as complete non-inclusion of the order; the omission is incurable even under the overriding objective.
  • The overriding objective (sections 3A and 3B of the Appellate Jurisdiction Act) cannot be invoked to make competent an appeal filed out of time or otherwise incompetent.
  • A court cannot exercise its adjudicatory jurisdiction where an appeal is incompetent owing to omission of mandatory documents.

Court orders

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  1. 1.The respondent's notice of motion filed on 23rd March 2015 is allowed
  2. 2.Civil Appeal No. 10 of 2015 is struck out as incompetent
  3. 3.The respondent shall have costs of the application

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(b)
  • Court of Appeal RulesRule 82(1)
  • Court of Appeal RulesRule 82(2)
  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 87(1)(h)
  • Court of Appeal RulesRule 88
  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Advocates (Practice) RulesRule 9

Cases cited (8)

  • Bwana Mohamed Bwana v Silvano Buko Bonaya
    Petition No. 15 of 2014
  • Ramji Devji Vekaria v Joseph Oyula
    CA (Application) No. 154 of 2010 (Eldoret)
  • Pattni v Ali & 2 Others
    CA No 354 of 2004 (UR 183/04)
  • Christine Wangari Munga v David Mwaura & Another
    CA No. 196 of 2013
  • Benedict Mwanzighe & Another v Gasper Walele & 2 Others
    CA No. 255 of 2010 (Mombasa)
  • Musyoka Mutie Makau v Peter Mutie Makau & Another
    CA No NAI 303 of 2013
  • Development Bank of Kenya & Another v Francis Ndegwa T/A Muruguru Holdings Ltd
    CA No. 28 of 2013 (Nyeri)
  • Floris Pierro v Giancarlo Falasconi
    CA No 145 of 2012
On appeal from
High Court of Kenya at Malindi
HCCC No. 84 of 2010
Jurisdiction invoked
Rules 82(1), 84 and 87(1)(h) of the Court of Appeal Rules; Appellate Jurisdiction Act sections 3A and 3B

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, "Salama Beach Hotel Ltd v Rossi (Civil Appeal 10 of 2015) [2015] KECA 411 (KLR)", Case Analysis (2015). Civil Appeal No. 10 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/411/eng@2015-09-30

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