Sos Kinderdof International v Al Wakil Transference & General Tradingcompany
The bottom line
#The Court of Appeal refused to pause a long-running case, ruling that SOS Kinderdof's planned appeal was too weak and partly based on guesswork.
What this practically means
#Executive summary
#Key legal issues
#Competence of the application for want of a notice of appeal
The court noted the notice of appeal could not be traced and may well not have been filed, which would render the application incompetent; however, it proceeded to determine the motion on its merits given the possibility the notice was misplaced.
The respondent asserted no notice of appeal under Rule 75 was filed and the applicant never rebutted that allegation. The court concluded the notice may not have been filed, which would leave the application without legs, but allowed for registry misplacement and nonetheless considered the merits rather than striking out the motion on that basis.
Admissibility of secondary evidence under sections 68 and 69 of the Evidence Act
The intended appeal on the admissibility of secondary evidence of a copy agreement was not arguable; the circumstances for invoking those provisions are clearly circumscribed, and the notice to produce had been served on the very law firm appearing for the applicant.
The court held it was 'no brainer' that the intended grounds on secondary evidence were unarguable. The applicant could have objected that the notice to produce was served on the wrong party but did not; the notice was served on Messrs. Kaplan & Stratton Advocates, the applicant's own advocates, undermining the objection to secondary evidence.
Interference with trial court's discretionary conduct of proceedings
The ground attacking the trial court's decision to mark the copy agreement for identification rather than admit it was not a valid ground of appeal, as it merely questions the exercise of discretion; further, the trial court made no definitive determination, so the applicant's fears were speculative.
The court reasoned that appellate courts rarely interfere with the exercise of discretion if not injudiciously exercised, and that parties cannot micro-manage the trial court's conduct of its business. Since the document was only marked for identification and its eventual admission or weight remained open, the applicant's prejudice was speculative.
Legal principles established
#- The twin principles for granting a stay of proceedings under Rule 5(2)(b) are an arguable appeal and that the appeal would be rendered nugatory absent the stay.
- The jurisdiction of the Court of Appeal under Rule 5(2)(b) is invoked only by lodging a notice of appeal or filing the appeal itself.
- An appellate court will hardly interfere with a trial court's exercise of discretion in the conduct of proceedings, and parties cannot micro-manage the trial court.
- Speculation about the possible fate of evidence at trial cannot found an arguable appeal.
Court orders
#- 1.The application dated 10th February 2020 is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C No. 2277 of 1998
- Jurisdiction invoked
- Rules 5(2)(b) of the Court of Appeal Rules, 2010; Article 159 and 164(3) of the Constitution; Section 3A and 3B of the Appellate Jurisdiction Act; Order 42 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sos Kinderdof International v Al Wakil Transference & General Tradingcompany", Case Analysis (2021). Civil Application No 31 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/790/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.