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Court of AppealDismissedCivil Appeal No. 66 of 2015· [2016] KECA 184 (KLR)

In re Ngomeni Swimmers Limited [2016] KECA 184 (KLR)

Court of Appeal
26 February 2016
1,423 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that minor paperwork errors in an appeal from a company winding-up case do not kill the appeal if no one is actually prejudiced.

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 (Ouko, M'inoti and Otieno-Odek, JJ.A.) dismissing two applications by creditors of Ngomeni Swimmers Limited to strike out the Company's notice of appeal and record of appeal against a High Court ruling (Chitembwe, J.) of 11th June 2015 dismissing the Company's application to strike out two winding up petitions founded on unpaid taxed costs. The applicants advanced three grounds: that the record of appeal was filed out of time without leave; that there was no automatic right of appeal and leave had not been obtained; and that the appeal was defective for failure to certify the record under rule 87(5) of the Court of Appeal Rules. The court rejected all three. The certification defect was held a mere technicality curable under Article 159(2)(d) of the Constitution and the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act, no prejudice having been shown. On timeliness, the court held that because the Company complied with the proviso to rule 82 by bespeaking proceedings in writing within 30 days and serving the request, the 60-day period ran from notification that certified copies were ready (25th August 2015), making the record filed on 22nd September 2015 within time. On the leave question, the court held that under section 270 of the Companies Act an appeal lies as of right from any decision of the High Court in the exercise of its winding up jurisdiction under section 218. The applications were dismissed with costs to the Company. The ruling binds subordinate courts and the High Court on these procedural propositions.

Key legal issues

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01

Whether non-compliance with rule 87(5) certification of the record of appeal is fatal to the appeal

Holding

It is a curable technicality; the applicant must show what is incorrect or what prejudice was occasioned

Reasoning

The court held that rule 87(5) merely requires certification that the record is correct. Since the applicant did not identify any incorrect aspect of the record or demonstrate how the lack of certification affected the competence of the appeal or occasioned prejudice, the breach was a technicality not going to the root of the appeal, curable under Article 159(2)(d) and the overriding objective.

p. 2
02

Whether the record of appeal was filed out of time

Holding

It was filed within time because the 60-day period ran from notification that certified proceedings were ready

Reasoning

The notice of appeal was lodged within 14 days under rule 75(2). The Company bespeaking proceedings in writing within 30 days and served the request as required by the proviso to rule 82. Accordingly, time for filing the record began when the Registrar notified the Company that certified copies were ready (25th August 2015), and the record filed on 22nd September 2015 was within 60 days.

p. 3
03

Whether leave to appeal was required from a High Court winding up decision

Holding

No leave was required; an appeal lies as of right under section 270 of the Companies Act

Reasoning

The court held that the winding up jurisdiction of the High Court is conferred by section 218 of the Companies Act, and under section 270 an appeal lies as of right to the Court of Appeal from any decision or order in the exercise of that jurisdiction, subject only to conditions and limitations prescribed by the rules. Counsel's reliance on the Civil Procedure Rules to the contrary was rejected as having no merit.

p. 3

Legal principles established

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  • Breach of rule 87(5) certification requirement is a procedural technicality curable under Article 159(2)(d) of the Constitution and the overriding objective where no prejudice is shown
  • Where a party complies with the proviso to rule 82 by applying in writing within 30 days and serving the request for proceedings, the 60-day period for filing the record of appeal runs from notification by the Registrar that certified copies are ready
  • An appeal lies as of right to the Court of Appeal from any decision or order of the High Court in the exercise of its winding up jurisdiction under section 218 of the Companies Act, subject only to conditions and limitations prescribed by the rules

Court orders

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  1. 1.The two applications to strike out the notice of appeal and record of appeal are dismissed
  2. 2.Costs of the applications awarded to the Company

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Appellate Jurisdiction ActSections 3A and 3B
  • Companies Act, Cap 486Section 218
  • Companies Act, Cap 486Section 270
  • Court of Appeal RulesRule 75(2)
  • Court of Appeal RulesRule 82 (proviso)
  • Court of Appeal RulesRule 87(5)
  • Companies (Winding Up) Rules
  • Civil Procedure Rules

Cases cited (3)

  • LAMANKEN ARAMAT V. HARUN MAITAMEI LEMPAKA
    SC Petition No. 5 of 2014
  • BENEDICT MWANZIGHE & ANOTHER V. GASPER WALELE & 2 OTHERS
    CA No. 255 of 2010 (Mombasa)
  • DEVELOPMENT BANK OF KENYA & ANOTHER V. FRANCIS NDEGWA T/A MURUGURU HOLDINGS LTD
    CA No. 28 of 2013 (Nyeri)
On appeal from
High Court of Kenya at Malindi
Winding Up Causes Nos. 1 and 2 of 2014
Jurisdiction invoked
Appellate jurisdiction under the Appellate Jurisdiction Act (sections 3A and 3B) and section 270 of the Companies Act, Cap 486

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, "In re Ngomeni Swimmers Limited [2016] KECA 184 (KLR)", Case Analysis (2016). Civil Appeal No. 66 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/184/eng@2016-02-26

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