Tasmac Limited v Robertio Macri & 3 others [2017] KECA 36 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the Court of Appeal to grant leave to appeal where leave is required
The Court has no jurisdiction; leave must first be sought from the High Court under Order 43 Rule 3 of the Civil Procedure Rules.
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.
Whether extension of time could cure the lack of prior application for leave
No - the Court cannot extend time for an application for leave which it has no jurisdiction to grant.
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.
Legal principles established
#- 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
#- 1.The application dated 21st February 2017 was dismissed with costs to the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.