Velos Enterprises Limited v Paragon Electronics Limited [2018] KECA 373 (KLR)
The bottom line
#If you never got notice that a court ruling was delivered, Kenyan courts will still hear you — even if the usual deadline has passed.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to leave to file a reference out of time under rule 55 where the applicant had no notice of delivery of the ruling
Leave is granted because the applicant was denied procedural fairness; the single Judge's ruling was delivered in its absence without notice, so the applicant only learnt of it when garnishee orders were served on its bankers.
Rule 55 donates a right to a dissatisfied party to refer a single Judge's decision to the full bench. Since the ruling had been deferred to be delivered on notice, the court bore the burden of serving proper notice on all parties. The record showed no such notice was issued or served on the applicant's advocates. Natural justice and the right to be heard required more; the applicant learned of the ruling only through garnishee proceedings on 25 July 2017 and filed the motion less than a week later, so there was no delay.
Nature of the right of reference under rule 55
The right of reference to the full bench is exercisable as of right and requires no reasons; the applicant's failure to apply within 7 days was excused because it lacked notice of the ruling.
The court construed rule 55, noting it permits application informally to the Judge when the decision is given or by writing to the Registrar within seven days, without requiring reasons. Because the applicant was never served with notice of the deferred ruling, the seven-day period could not properly run against it. The court endorsed Waki, J.A.'s approach in Oshwal Academy on the failure to notify parties of a judgment.
Legal principles established
#- Where a court defers a ruling or judgment to be delivered on notice, the burden shifts to the court to ensure that proper notice is served on all parties.
- The right of reference to the full bench under rule 55 is a right exercisable as of right, without reasons, and need not be forfeited because a party was not notified of the single Judge's decision.
- Where a party had no notice of delivery of a ruling, the period for seeking a reference runs from actual knowledge, and no inordinate delay arises where the application is made promptly upon learning of the ruling.
Court orders
#- 1.Leave granted to the applicant to have a reference as contemplated by rule 55 of the Court of Appeal Rules
- 2.No need to file any other application; the file will be placed before the court for a reference
- 3.The file and the ruling to be placed before the Registrar of the Court for his necessary action
- 4.Costs of the motion to be in the reference
- On appeal from
- High Court of Kenya at Nairobi
- Jurisdiction invoked
- Sections 3 and 5 of the Appellate Jurisdiction Act and Rules 42 and 55 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Velos Enterprises Limited v Paragon Electronics Limited [2018] KECA 373 (KLR)", Case Analysis (2018). Civil Application No. NAI. 282/2015 (UR 240/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/373/eng@2018-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.