Application for leave to file an application for leave to appeal out of time (In re Interlocutory Injunction granted by Githinji, J.)
The bottom line
#Kenya's Court of Appeal struck out an application for leave to appeal an interlocutory injunction because such appeals lie as of right and no leave is needed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court has jurisdiction to grant leave to file an application for leave to appeal out of time where the order appealed from is one appealable as of right under section 75(1) of the Civil Procedure Act and Order 42(1) of the Civil Procedure Rules
- 2.Whether, where leave to appeal is required, the time for applying for leave can be extended under Rule 4 of the Court of Appeal Rules notwithstanding section 58 of the Interpretation and General Provisions Act
- 3.Whether failure to file a notice of appeal is fatal to the application
- 4.Whether the notice of motion complies with Rule 42 of the Court of Appeal Rules
Key legal issues
#Whether leave to appeal is required for an interlocutory injunction order
No leave is required; an appeal from an order granting an interlocutory injunction under Order 39 lies as of right, so the application for leave was an abuse of process and incompetent.
Order 42(1) of the Civil Procedure Rules, derived from section 75(1) of the Civil Procedure Act, makes an appeal from such an interlocutory order appealable as of right. An application seeking leave to appeal from such an order is therefore unnecessary and constitutes an abuse of the process of the Court, rendering the application incompetent.
Whether Rule 4 of the Court of Appeal Rules can extend the time for applying for leave to appeal
No. Rule 39(a) is subsidiary legislation and cannot affect principal legislation, namely section 75 of the Civil Procedure Act and section 58 of Cap 2, which require applications for leave to be made without unreasonable delay.
The applicant argued that the fourteen-day period in Rule 39(a) could be extended by Rule 4. The court held that a rule of court, being subsidiary legislation, cannot override principal legislation. Where the rules are silent on time, section 58 of Cap 2 applies, requiring the application without unreasonable delay; the applicant's 34-day delay was unexplained adequately and the application was misconceived.
Whether the notice of motion was competent
The notice of motion was incompetent because it failed to state the grounds of the application as mandatorily required by Rule 42(1) and Form A in the first schedule.
Rule 42(1) mandatorily requires a motion to state the grounds of the application, and Rule 42(2) requires the notice to be substantially in Form A, which contains the same prerequisite. The applicant's motion stated no grounds, whether directly or by cross-reference to the supporting affidavit, and was for that reason independently incompetent and liable to be struck out.
Whether failure to file a notice of appeal was fatal to the application
The court declined to decide the issue, as no notice of appeal or appeal yet existed that could be struck out.
Rule 74 requires a notice of appeal within fourteen days as an essential step, and even where leave is required, the notice must still be filed. However, the court held that the stage had not been reached where a notice of appeal or appeal existed that could be struck out, and therefore made no decision on whether the omission was fatal to the present application.
Legal principles established
#- Where an appeal lies as of right from an interlocutory order under section 75(1) of the Civil Procedure Act and Order 42(1) of the Civil Procedure Rules, an application for leave to appeal is an abuse of the process and incompetent.
- A subsidiary legislation such as Rule 39(a) of the Court of Appeal Rules cannot affect or override principal legislation such as section 75 of the Civil Procedure Act and section 58 of the Interpretation and General Provisions Act; accordingly Rule 4 cannot be used to extend the time for applying for leave to appeal where the statute requires such application to be made without unreasonable delay.
- Where the rules prescribe no time for an application for leave to appeal, section 58 of the Interpretation and General Provisions Act requires it to be made without unreasonable delay.
- A notice of motion under Rule 42(1) of the Court of Appeal Rules must state the grounds of the application; omission of the grounds, even by cross-reference to a supporting affidavit, renders the motion incompetent.
Court orders
#- 1.The applicant's notice of motion dated 12th June 1997 is struck out
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- Not stated in the judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application for extension of time)
Relief refused
#Leave to file an application for leave to appeal out of time in respect of the High Court decision of 8th May 1997
The order appealed from is one in respect of which an appeal lies as of right, making the application an abuse of the process; and the notice of motion failed to state grounds as mandatorily required by Rule 42(1) of the Court of Appeal Rules
Costs
Costs of the application awarded to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This being an order in respect of which according Order 42(1) of the Civil Procedure Rules and which is derived from section 75(1) of the Civil Procedure Act, an appeal lies as of right, the present application is an abuse of the process of this Court and incompetent.
But would a subsidiary legislation like Rule 39(a) which is only a part of the Rules of this Court affect principal legislation like section 75 of the Civil Procedure Act and section 58 of Cap 2? I would say not.
Where no time is prescribed or allowed within which anything shall be done, such things shall be done without unreasonable delay, and as often as due occasion arises.
Since the applicant's notice of motion does not contain the grounds on which the orders sought therein are being sought and indeed, no mention of the grounds are even made by cross reference to the supporting affidavit, the notice of motion is incompetent and is for this reason also struck out.
As I have already indicated the present application will be struck out, and with costs for the respondent. It is so ordered.
Issues in the judgment
#The judgment does not state the case number, the names of the parties, or the neutral citation; the applicant and respondent are referred to only generically.
The judgment appears to be delivered by a single judge (Akiwumi, JA) sitting alone, though the Court of Appeal ordinarily sits in panels; the coram shows only one judge.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Application for leave to file an application for leave to appeal out of time (In re Interlocutory Injunction granted by Githinji, J.)", Case Analysis (1997). Not stated in the judgment. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.