Kenya Pipeline Company Limited v Kenya Oil Company Limited & another
The bottom line
#Kenya's Court of Appeal confirmed that appealing a decision striking out pleadings needs no court permission, but Kenya Pipeline still had to file its appeal quickly.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Court of Appeal over the application
The court had jurisdiction because the intended appeal was against the High Court's striking out of pleadings for want of jurisdiction, an appeal lying as of right without leave.
Section 75 of the Civil Procedure Act read with order 43 rule 1 of the Civil Procedure Rules governs appeals. Order 43 rule 1(2) requires leave only for appeals from other orders under the Rules. The matter before the court was not the arbitral award but the High Court's decision striking out the applicant's pleadings for lack of jurisdiction; an appeal from striking out of pleadings requires no leave, so the intended appeal was properly before the court.
Extension of time and leave to appeal
The application for extension of time and leave was misplaced because leave was not required; the notice of appeal had been filed within the statutory period.
The High Court ruling was delivered on August 18, 2022; a notice of appeal was filed and served on August 26, 2022, within the 14-day statutory period. Having found that leave of the High Court was not a requirement, the application seeking extension of time and leave to appeal had no foundation and was devoid of merit.
Stay of enforcement of the arbitral reassessment
The prayer for stay was struck out as it does not fall for consideration by a single Judge.
The applicant sought a stay of enforcement and/or further proceedings based on the arbitrator's reassessment of loss and damages pending hearing of the application and/or intended appeal. The single Judge held that such a prayer does not fall for his consideration and struck it out.
Legal principles established
#- An appeal arising from the striking out of pleadings lies as of right and does not require the leave of the court under order 43 of the Civil Procedure Rules.
- Where the statutory timeframe for filing an appeal has run out, a single Judge may, in the interest of justice, direct filing of the record of appeal within a stated period.
Court orders
#- 1.Prayer for stay of enforcement of further proceedings based on the arbitrator's reassessment of loss and damages struck out
- 2.Applicant ordered to file its record of appeal within 30 days of the ruling
- 3.Costs shall be in the intended appeal
- On appeal from
- High Court
- High Court Miscellaneous Application No 380 of 2016 – Kenya Pipeline Company Limited v Kenya Oil Company Limited & Kobil Petroleum Limited
- Jurisdiction invoked
- Sections 3, 3A & 3B of the Appellate Jurisdiction Act (Cap 9); Rules 4, 41(1)(b), 44 & 45 of the Court of Appeal Rules, 2022; articles 48, 50(1) and 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Samow Edin Osman v Rashid Bukura Somo[2016] KEHC 8575 (KLR)27 May 2016applied
- Tilton Investments Limited v DHL Exel Supply Chain Kenya Limited[2015] KEHC 2990 (KLR)21 Jul 2015
- Municipal Council Of Nakuru v Reliable Concrete Works Limited [2014] KECA 300 (KLR)[2014] KECA 300 (KLR)23 Oct 2014applied
- In re: K & A Self Selection Stores Limited (application to set aside arbitral award)[2014] KEHC 8649 (KLR)20 Jan 2014
- Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others[2013] KEHC 127 (KLR)30 Aug 2013applied
Cite this brief
#Cite this brief
Caselaw, "Kenya Pipeline Company Limited v Kenya Oil Company Limited & another", Case Analysis (2022). Civil Appeal (Application) E344 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1352/eng@2022-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.