National Oil Corporation of Kenya v Suleiman Mohamed Said Suleiman Al-Busaidy & 3 others [2020] KECA 759 (KLR)
The bottom line
#Kenya's Court of Appeal saved National Oil's late appeal from being struck out, holding that procedural mistakes can be forgiven when explained and no one is prejudiced.
What this practically means
#Executive summary
#Key legal issues
#Whether procedural defaults in filing and serving a notice of appeal and record of appeal justify striking out an appeal under rule 84
Striking out is a discretionary, case-by-case remedy; where the defaults are explained, non-deliberate, the delay not inordinate, and no prejudice caused, the Court will exercise its discretion under rule 4 and deem the appeal documents duly filed and served rather than strike out the appeal.
The Court surveyed decisions across the spectrum: strict authority holding that timeous filing goes to jurisdiction and is not curable under Article 159, and liberal authority (Salat, Pattni) holding that deviations not going to jurisdiction or causing prejudice should not attract the draconian remedy of striking out. It reconciled both lines by treating rule 84 as conferring a discretion dependent on circumstances, then applied the established explanation, absence of deliberate default, non-inordinate delay, and absence of irremediable prejudice.
Whether withdrawal of a compliant notice of appeal and subsequent filing of a fresh, out-of-time notice without leave is fatal
While the withdrawal of a compliant notice of appeal and late filing of a fresh one without leave were mistakes, they were not deliberate, and in the circumstances the appeal was spared striking out.
The Court accepted as plausible the explanation that the appellant withdrew its timely notice intending to ride on Vivo Energy's notice of appeal, and filed a fresh notice when it realized Vivo Energy would not seek stay of execution. The series of advocate errors - premature withdrawal, filing without leave, non-service of the notice and of the letter bespeaking proceedings - were characterized as non-intentional, and the resulting delay as not inordinate, so the discretion favoured salvaging the appeal.
Legal principles established
#- The power to strike out a notice of appeal or appeal under rule 84 is an exercise of judicial discretion dependent on the circumstances of each case.
- Whether or not an appeal is filed on time goes to the jurisdiction of the Court, and an appeal filed out of time without leave is not curable under Article 159 of the Constitution.
- Where the default is explained to the satisfaction of the court, the court may exercise its discretion under rule 4 and decline to strike out a notice of appeal or an appeal, deeming it duly filed and served.
- The door of justice is not closed because a mistake has been made by a person of experience; the court ought to do whatever is necessary to rectify it if the interests of justice so dictate.
Court orders
#- 1.The applicants' application dated 9th July 2018 to strike out the notice of appeal and record of appeal is dismissed
- 2.The Court, exercising its discretion under rule 4, deems the notice of appeal and the record of appeal as duly filed and served
- 3.The appellant's second application dated 12th July 2019 for extension of time abates, no determination being necessary
- 4.The appellant to pay the applicants' costs of both applications
- On appeal from
- Environment and Land Court at Mombasa
- Mombasa ELC C. No. 16 of 2016
- Jurisdiction invoked
- Court of Appeal Rules, rule 84 (application to strike out notice of appeal or appeal) and rule 4 (extension of time), under the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Oil Corporation of Kenya v Suleiman Mohamed Said Suleiman Al-Busaidy & 3 others [2020] KECA 759 (KLR)", Case Analysis (2020). Civil Appeal (Application) No. 77 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/759/eng@2020-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.