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Court of AppealDismissedCivil Application No. 6 of 2017· [2017] KECA 36 (KLR)

Tasmac Limited v Robertio Macri & 3 others [2017] KECA 36 (KLR)

Court of Appeal of Kenya
12 October 2017
1,265 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that if you need the High Court's permission to appeal, you must ask the High Court first—not the Court of Appeal.

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 (Visram, Karanja and Koome, JJ.A.) on a motion dated 21st February 2017 by the applicant in Civil Application No. 6 of 2017, an intended appeal from the ruling of Angote, J. of the High Court at Malindi delivered on 3rd February 2017 in ELC Misc. No. 5 of 2013. The applicant sought extension of time to apply for leave to appeal, leave to appeal against the whole ruling, setting aside of that ruling (later abandoned), and a conservatory order restraining the respondents from interfering with his shareholding in Nassau Limited, access to its premises (including Blue Marlin Resort and Apartment No. 8 Block 'D'), and its business pending the intended appeal. The respondents opposed, contending that leave should first have been sought from the High Court under Rule 39 of the Court of Appeal Rules. The Court agreed: leave to appeal, where no automatic right of appeal exists under Order 43 of the Civil Procedure Rules, is the preserve of the High Court, and Rule 41's extension power applies only where the Court already has jurisdiction to grant the orders sought. Since the Court had no jurisdiction to grant leave, it could not extend time for applying for that leave, and the whole application was incompetent. It dismissed the application with costs to the respondents. The decision binds subordinate courts as an authoritative statement that leave to appeal under section 75 of the Civil Procedure Act must in the first instance be sought from the court making the order appealed from.

Key legal issues

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01

Jurisdiction of the Court of Appeal to grant leave to appeal where leave is required

Holding

The Court has no jurisdiction; leave must first be sought from the High Court under Order 43 Rule 3 of the Civil Procedure Rules.

Reasoning

Rule 39(b) of the Court of Appeal Rules governs applications for leave where leave is required, while Rule 41 permits the Court to entertain applications for extension of time only for acts authorized under its own Rules. Leave to appeal under section 75 of the Civil Procedure Act, by virtue of Order 43 Rule 3, must in the first instance be made to the court making the order sought to be appealed from. The applicant never sought leave from the High Court, so the application before the Court of Appeal was incompetent and doomed to fail.

p. 2
02

Whether extension of time could cure the lack of prior application for leave

Holding

No - the Court cannot extend time for an application for leave which it has no jurisdiction to grant.

Reasoning

The Court framed the question as whether jurisdiction to extend time can exist where there is no jurisdiction to grant the underlying leave. It answered in the negative. Extension of time under Rule 41 applies only where the Court has jurisdiction to grant the orders sought in the first place, such as where an automatic right of appeal exists but the appeal or record was filed late. Since leave itself was a prerequisite and had not been sought in the High Court, the extension prayer and all consequential prayers failed.

p. 2

Legal principles established

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  • Where leave to appeal is a prerequisite, the Court of Appeal has no jurisdiction to grant that leave in the first instance; it is the preserve of the High Court whose decision is challenged.
  • A court without jurisdiction to grant substantive relief cannot extend time for making the application for that relief.
  • Rule 41 applies only to acts authorized under the Court of Appeal Rules and does not allow a party to bypass the High Court when seeking leave to appeal.

Court orders

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  1. 1.The application dated 21st February 2017 was dismissed with costs to the Respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 39
  • Court of Appeal RulesRule 41
  • Civil Procedure RulesOrder 43
  • Civil Procedure RulesOrder 43 Rule 3
  • Civil Procedure ActSection 75
On appeal from
High Court of Kenya at Malindi
ELC Misc. No. 5 of 2013
Jurisdiction invoked
Court of Appeal Rules (Rules 39 and 41); intended appeal under section 75 of the Civil Procedure Act with leave required (Order 43 of the Civil Procedure 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, "Tasmac Limited v Robertio Macri & 3 others [2017] KECA 36 (KLR)", Case Analysis (2017). Civil Application No. 6 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/36/eng@2017-10-12

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