Nakumatt Holdings Limited & another v Ideal Locations Limited [2018] KECA 190 (KLR)
The bottom line
#The Court of Appeal struck out Nakumatt's late supplementary record of appeal but allowed the main appeal to proceed, ruling that Rule 84 cannot be used to resolve contested substantive questions.
What this practically means
#Executive summary
#Key legal issues
#Striking out a supplementary record of appeal filed out of time without leave
The supplementary record of appeal filed on 3rd July 2018, being out of time and without leave, was struck out together with the further amended memorandum of appeal it contained
The trial court had allowed five days for filing a supplementary record of appeal. The record filed on 3rd July 2018 exceeded that timeline and the 30-day window, and counsel for the appellants conceded no application for leave or extension of time had been made. Rule 84 permits striking out a record where an essential step has not been taken within the prescribed time. The default was clear and uncontroverted, justifying striking out.
Whether an appeal allegedly overtaken by events can be struck out under Rule 84
No. Rule 84's grounds are limited and where the assertion that no appeal lies is contested and merits-based, the question must be determined at the hearing of the appeal, not on a striking-out application
The respondent argued the appeal was overtaken by events because the trial court had, on review, conditionally reinstated the appellants and was to determine the rent arrears question. The Court held Rule 84 expressly limits the grounds for striking out; whether an appeal lies is jurisdictional and substantive, not procedural. Since the parties did not agree the appeal was overtaken by events, an informed determination required hearing the main appeal. A party may allege but has no authority to determine that an appeal does not lie.
Scope of grounds under Rule 84
Rule 84 applies where no appeal lies as a matter of law (e.g. no right of appeal, or appeals from consent orders, subject to exceptions) or where an essential step was not taken within prescribed time - not to contested substantive questions
The Court adopted the statement in Luther Peter Muia v Zuena Ngando Kababu that Rule 84 is intended for situations such as a notice of appeal lodged or served out of time, leave to appeal not sought and obtained, no appeal lying, or a precedent step not taken. These are matters that can be demonstrated clearly, uncontroverted and uncontestable. The respondent's wide reading of Rule 84 to cover reviews that interfere with the substratum of an appeal was rejected as inviting the Court into the merits.
Legal principles established
#- Rule 84 is a summary procedure whose grounds are limited; the facts relied on must be clear, uncontroverted and uncontestable
- Whether an appeal lies is a jurisdictional and substantive question, not a procedural one, and cannot be determined on a contested Rule 84 application
- A contested allegation that an appeal has been overtaken by events cannot be resolved under Rule 84; it must await the hearing of the main appeal
Court orders
#- 1.Struck out the supplementary record of appeal (Volume 2) dated 11th June 2018 and filed on 3rd July 2018 together with the further amended memorandum of appeal dated 11th June 2018
- 2.Appellants to pay the costs of the Motion dated 1st August 2018
- 3.Dismissed the Notice of Motion dated 11th July 2018 seeking to strike out and/or dismiss the main appeal, with costs in the appeal
- On appeal from
- High Court of Kenya at Mombasa
- MSA ELC. C. No. 400 of 2017
- Jurisdiction invoked
- Court of Appeal Rules, 2010, Rule 84 (appellate jurisdiction over record of appeal and supplementary record of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nakumatt Holdings Limited & another v Ideal Locations Limited [2018] KECA 190 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 27 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/190/eng@2018-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.