Intercounties Importers and Exporters Ltd v Teleposta Pension Scheme Registered Trustee & 5 others [2018] KECA 817 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out an appeal because the strike-out application was filed late and an existing consent order extending time remained binding on the parties.
What this practically means
#Executive summary
#Key legal issues
#Effect of failure to serve the letter bespeaking proceedings
A party appealing cannot rely on the exclusion of registry preparation time unless the written application for proceedings was served on the other parties; the 1st respondent's unserved letter therefore could not extend the time for lodging the record of appeal.
Rule 82 requires an appeal to be instituted within sixty days of the notice of appeal. Where a written application for proceedings is made within thirty days, registry time is excluded, but only if that application was served on the other side. The 1st respondent conceded its letter was not copied to or served on any respondent, so it could not invoke the dispensation, and no certificate of delay was obtained.
Timeliness of the application to strike out
The application to strike out, filed on 4th November 2016, was over one month outside the thirty days allowed by the proviso to Rule 84 from the service of the notice of appeal on 29th July 2016.
The proviso to Rule 84 requires an application to strike out a notice of appeal or an appeal to be brought within thirty days of service of the notice of appeal or the record of appeal, whichever is earlier. The notice of appeal was served on 29th July 2016 and the application was filed on 4th November 2016, more than a month late. Courts' power to strike out must also be used sparingly and cautiously.
Binding effect of the consent order extending time
The consent order of 26th September 2016, which extended time for filing the appeal by six months, had contractual effect, had not been set aside on any recognized ground, and bound the applicant, defeating the strike-out application.
A consent judgment or order, once adopted by the court, has contractual effect and can only be set aside on grounds justifying setting aside a contract, such as fraud, collusion or misrepresentation. None of these grounds were raised. Clause 3 of the consent gave the 1st respondent six months from 26th September 2016 to file its appeal, and the record of appeal was filed within that window on 14th December 2016.
Nature of the power to extend time
Extension of time is a matter of absolute judicial discretion guided only by the justice of the case, exercisable even after the time has expired or the act has been done, save for statutorily fixed periods such as electoral disputes and limitation of actions.
Article 259(9) of the Constitution and section 7 of the Appellate Jurisdiction Act confer wide latitude on courts to enlarge time for doing acts required by the Constitution, statute or rules, whether before or after the act. Leave must be sought so long as the delay is not inordinate, is sufficiently explained, and no prejudice is suffered by the other party.
Legal principles established
#- Extension of time under section 7 of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules is a matter of absolute judicial discretion guided by the justice of the case, exercisable whether before or after the act has been done.
- A party may only rely on the exclusion of registry time when computing time to institute an appeal if the written application for proceedings was served on the other side.
- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside.
- An application to strike out a notice of appeal or an appeal must be brought within thirty days from the date of service of the notice of appeal or record of appeal, whichever is earlier or relevant.
Court orders
#- 1.The application to strike out the notice of appeal dated 29th July 2016 is dismissed
- 2.Costs will be in the appeal
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 1400 of 2004
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Intercounties Importers and Exporters Ltd v Teleposta Pension Scheme Registered Trustee & 5 others [2018] KECA 817 (KLR)", Case Analysis (2018). Civil Application NAI No. 246 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/817/eng@2018-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.