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Court of AppealDismissedCivil Appeal No. 261 of 1996

Transworld Safaris Kenya Limited v Somak Travel Limited [1997] KECA 205 (KLR)

Court of Appeal of Kenya
5 November 1997
1,717 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a panel of three judges can resolve conflicting precedents—no larger bench is needed.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Kwach, Shah and Pall JJ.A) disposed of an oral application by counsel for the appellant, Transworld Safaris Kenya Limited, that the appeal against a High Court ruling (Juma J, 16 November 1995) be heard by a five-judge bench. The application was founded on conflicting decisions of the Court of Appeal on the procedure for challenging a grant of extension of time under section 28 of the Limitation of Actions Act. In Oruta and Mbithi the Court held such leave could only be challenged at the trial of the suit; in Michael Maina the Court held an extension order could only be set aside in a proceeding directed to that special end; in Kabungu, Akiwumi and Shah JJ.A (Bosire Ag. JA dissenting) followed Oruta and Mbithi. The court declined to constitute a larger bench, holding the application misconceived and, in any event, that a three-judge bench can direct its mind to conflicting authorities and decide which to follow, citing Dodhia v National & Grindlays Bank. The court further observed that the appeal was premature on either line of authority: under Michael Maina the appellant's application to set aside the ex-parte order of Juma J remained pending, and under the other cases the challenge lay only at trial. The court also flagged, without deciding, that under the Carriage by Air legislation the right to claim damages for the balloon accident was extinguished rather than time-barred, and an extinguished cause of action cannot be revived. The application was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether, in view of conflicting decisions of the Court of Appeal on the procedure for challenging a grant of extension of time under section 28 of the Limitation of Actions Act, the appeal should be heard by a five-judge bench
  2. 2.Whether the appeal was premature or misconceived

Key legal issues

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01

Whether a five-judge bench was required to resolve conflicting Court of Appeal decisions on the procedure for challenging an extension of time under section 28 of the Limitation of Actions Act

Holding

The application was misconceived; a three-judge bench can consider the conflicting authorities and decide which to follow.

Reasoning

The court catalogued the conflict: Oruta and Mbithi held that a grant of leave under section 28 can only be challenged at the trial of the suit; Michael Maina held that an order extending time can only be set aside in a proceeding directed to that special end; in Kabungu, Akiwumi and Shah JJA (Bosire Ag JA dissenting) followed Oruta and Mbithi. Despite this conflict, the court held that a bench of three judges is competent to choose between conflicting decisions, citing Dodhia v National & Grindlays Bank, and dismissed the oral application for a five-judge bench with costs.

p. 3
02

Whether the appeal was premature irrespective of which line of authority is followed

Holding

The appeal was premature on either line of authority: under Michael Maina the appellant's application to set aside the ex-parte order of Juma J was still pending, and under the other cases the challenge lies only at the trial.

Reasoning

The court observed that if the superior court followed Michael Maina, it would still have to adjudicate on the appellant's pending application to set aside the ex-parte extension order; if it followed Oruta, Mbithi and Kabungu, the challenge could only be mounted at the trial of the suit. On either footing the present appeal was premature and could not be entertained.

p. 3
03

Whether the cause of action was time-barred or extinguished

Holding

Under the Carriage by Air legislation the right to claim damages for the balloon accident is extinguished, not time-barred, and an extinguished cause of action cannot be revived by extension of time; but the court refrained from deciding the point fully for want of argument.

Reasoning

The court noted that neither counsel had addressed whether the cause of action, based on alleged negligence of the pilot, was time-barred. Under the 1953 Carriage by Air Act (Application of Provisions) Order, Article 29 extinguishes rather than bars the right to claim damages. Extension of time under the Limitation of Actions Act applies to ordinary negligence, but an extinguished cause of action cannot be revived. The court declined to say more, lacking full argument, and noted the plaint was founded entirely on breach of contract.

p. 3

Legal principles established

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  • A three-judge bench of the Court of Appeal is competent to consider conflicting decisions of the Court and decide which of the conflicting decisions to follow; a five-judge bench is not required for that purpose.
  • Where a cause of action has been extinguished by statute, as under Article 29 of the Carriage by Air (Application of Provisions) Order, it cannot be revived by an extension of time; extension of time under the Limitation of Actions Act applies only to causes that are time-barred, not extinguished.

Court orders

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  1. 1.The oral application by Mr. Ransley for the appeal to be heard by a five-judge bench is dismissed
  2. 2.Costs of the application to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2271 of 1995
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over an appeal from the High Court (ruling of Juma J dated 16th November 1995)

Relief refused

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Constitution of a five-judge bench to hear the appeal

The application was misconceived; in any event a three-judge bench can direct its mind to conflicting authorities and decide which to follow

p. 3

Costs

The oral application by Mr. Ransley is dismissed with costs to the respondent in any event.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

our view is that the application for constituting a five judge bench to hear this appeal is misconceived
p. 3Application for five-judge bench
Even if the same was not misconceived, a three judge bench can direct its mind to the conflicting authorities and decide which of the conflicting decisions to follow.
p. 3Competence of a three-judge bench to resolve conflicting precedent
The oral application by Mr. Ransley is dismissed with costs to the respondent in any event.
p. 3Final orders and costs
But once a cause of action is extinguished it cannot be revived.
p. 3Distinction between time-barred and extinguished causes of action

Issues in the judgment

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minor

The judgment text contains a typographical corruption where the Limitation of Actions Act citation is interrupted by garbled text

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Transworld Safaris Kenya Limited v Somak Travel Limited [1997] KECA 205 (KLR)", Case Analysis (1997). Civil Appeal No. 261 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/205/eng@1997-11-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.