Africa Oil Turkana Limited & 2 Others v Edward Kings Onyancha Maina & 3 Others [2016] KECA 637 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a late, improperly served appeal notice, confirming constitutional fairness provisions cannot override mandatory procedural deadlines.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Motion was incompetent for having been filed by allegedly unqualified persons contrary to the Advocates Act and Evidence Act
- 2.Whether the computation of time under rule 3 of the Court of Appeal Rules excludes Saturdays and Sundays
- 3.Whether the 1st respondent's Notice of Appeal was lodged and served outside the periods prescribed by rules 75 and 77(1) of the Court of Appeal Rules
- 4.Whether the failure to serve the affected parties, and the omission of essential steps, could be cured under Article 159(2)(d) of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act
Key legal issues
#Competence of the Notice of Motion as filed by counsel allegedly without authority
The ground failed because the 1st respondent adduced no evidence that Anjarwalla & Khanna Advocates or Ms Okaalo were unqualified to draw and sign the application and supporting affidavit.
Sections 34 and 35 of the Advocates Act concern drawings of proceedings by unqualified persons, and sections 107-109 of the Evidence Act place the burden of proving facts on the person alleging them. The Notice of Motion was signed by the firm stating it acted for the applicants; the 1st respondent, who made the allegation, produced no proof of lack of qualification, so the ground fell away.
Computation of time for filing and serving the Notice of Appeal
Rule 3 excludes only Sundays and public holidays, and only when they fall on the last day of the period; Saturdays count, so the 1st respondent misread the rule.
The 1st respondent contended the Constitution excludes Saturdays and Sundays from working days, which would have brought filing and service within time. The Court quoted rule 3 of the Court of Appeal Rules, which deems a period exclusive of the day the event happens and extends only excluded days (Sundays and public holidays) falling on the last day. The Notice of Appeal was filed 18 days after judgment and served 34 days after lodging, breaching rules 75 and 77(1).
Whether procedural defaults can be cured by Article 159(2)(d) and sections 3A and 3B of the Appellate Jurisdiction Act
No: Article 159(2)(d) cannot be invoked to oust mandatory rules of procedure, and the 'O2 principle' invoked improperly is an unruly horse.
The 1st respondent filed the Notice of Appeal 18 days after judgment contrary to rule 75, served it 34 days after lodging contrary to rule 77(1), and failed to serve the affected parties without obtaining leave to dispense with service. These were essential and mandatory steps. The Court declined to treat them as curable technicalities, adopting its earlier statement in Hunter Trading Company Ltd v Elf Oil Kenya Limited that the overriding objective, improperly invoked, could become an unruly horse.
Service on the affected parties
The 1st respondent failed to discharge the onus of proving service on Eric Patrick Adero Obat, Moses Ombonyo Onyango and Lucy Muthoni Gatimu, so the applicants' averment of non-service stood.
The 1st respondent argued that no affected party produced evidence of non-service. The Court held the burden was the reverse: the intended appellant had to prove he had served all persons directly affected by the appeal under rule 77(1), and having failed to do so, the applicants' account of non-service was accepted.
Legal principles established
#- Article 159(2)(d) of the Constitution and the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act cannot be invoked to excuse non-compliance with mandatory rules of procedure such as rules 75 and 77(1) of the Court of Appeal Rules
- Under rule 3 of the Court of Appeal Rules, only Sundays and public holidays falling on the last day of a prescribed period are excluded; Saturdays are counted
- A party alleging that a document was drawn or an affidavit sworn by an unqualified person bears the burden of proving that allegation
- A party asserting service on affected parties bears the onus of proving that service
Court orders
#- 1.The Notice of Motion dated 17th September 2015 is allowed
- 2.The Notice of Appeal lodged on 21st July 2015 is struck out
- 3.Costs of the application to the applicants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- Winding Up Cause No. 1 of 2014 (formally Winding Up Cause No. 1 of 2012 Kitale)
- Jurisdiction invoked
- Inherent appellate jurisdiction under sections 3A and 3B of the Appellate Jurisdiction Act and rule 84 of the Court of Appeal Rules (application to strike out a Notice of Appeal)
Relief refused
#1st respondent's plea that the procedural defaults be excused under Article 159(2)(d) of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act
The Court held that the constitutional overriding-objective provisions cannot be used to bypass mandatory procedural rules; the Notice of Appeal was filed out of time, served 34 days late, and not served on all affected parties with no dispensation obtained
1st respondent's ground of opposition that the application was incompetent as filed by unqualified persons
The burden lay on the 1st respondent to prove the allegation of lack of qualification and he adduced no evidence
Costs
Costs of the Notice of Motion dated 17th September 2015 awarded to the applicants
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Article 159(2)(d) cannot be invoked to oust mandatory rules of procedure.
If improperly invoked, the “02 principle” [sections 3A and 3B of the Appellate Jurisdiction Act] could easily become an unruly horse.
These are fatal omissions which both Mr. Maina and Mr. Mokua would like to wish away under Article 159(2)(d) of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act as mere technicalities.
Accordingly we allow the Notice of Motion dated 17 th September 2015 with the result that the Notice of Appeal lodged on 21st July 2015 is hereby struck out with costs to the applicants. It is so ordered.
Issues in the judgment
#The coram states the court sat at Eldoret but the judgment is dated and delivered at Kisumu
The judgment is labelled 'RULING OF THE COURT' although it determines a striking-out application, and the block quote of rule 3 is truncated mid-rule
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Africa Oil Turkana Limited & 2 Others v Edward Kings Onyancha Maina & 3 Others [2016] KECA 637 (KLR)", Case Analysis (2016). Civil Application No. 50 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/637/eng@2016-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.