DRISCOLL INVESTMENTS LIMITED v CANELAND LIMITED & 3 OTHERS [2000] KECA 188 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late appeal notice to be served on an affected company, confirming courts will forgive honest mistakes when no one is prejudiced.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether time should be extended to allow the applicant to serve a copy of the notice of appeal filed on 8th May 2000 in High Court Civil Case No. 1135 of 1998 on CMC Holdings Limited.
- 2.Whether, alternatively, the time for lodgment of the application for dispensing with service of the notice of appeal on CMC Holdings Limited should be extended and such service dispensed with.
- 3.Whether the costs of the application should be provided for.
Key legal issues
#Whether time should be extended for service of the notice of appeal on CMC Holdings Limited, a party affected by the appeal who was not enjoined in the High Court proceedings.
Yes. Time was extended by seven days, requiring service of the notice of appeal on CMC Holdings Limited by 30th June 2000, the reasons for non-service being cogent and understandable and no prejudice being suffered by CMC Holdings.
The applicant was not a party to the High Court suit and only learnt of the execution proceedings against Dolphin Holdings Limited, by way of sale of its shares in Delphis Bank Limited, on or about 3rd May 2000. Rule 4 of the Court of Appeal Rules caters for extension of time to serve a notice of appeal on a party affected, and the judge had discretion to extend. CMC Holdings, though served with the application, did not oppose, and would suffer no prejudice as it would still have its day in court.
Whether, alternatively, service of the notice of appeal on CMC Holdings Limited should be dispensed with and time for lodging the dispensation application extended.
No orders were made. The alternative prayer was abandoned and not pursued by the applicant.
Counsel for Caneland Limited opposed the alternative prayer, by which the applicant sought extension of time to lodge an application for dispensing with service of the notice of appeal on CMC Holdings Limited. Counsel for the applicant, Mr Inamdar, stated he would be content not to pursue it, and the judge agreed that this was the correct course, the primary relief having been granted. The court therefore made no orders on the abandoned prayer.
Costs of the application.
No order as to costs.
The applicant's notice of motion sought that the costs of the application be provided for. The judge, having granted the primary prayer, noted that CMC Holdings Limited, though served with the application, did not appear to oppose it, and that the second and third respondents did not oppose. In all the circumstances of the application he declined to award costs, making no order as to costs.
Legal principles established
#- Rule 4 of the Court of Appeal Rules empowers the Court to extend time for service of a notice of appeal on a party affected by the appeal, including a party who was not enjoined in the proceedings below; the discretion may be exercised where the reasons for non-service are cogent and understandable and no prejudice will be suffered.
- Oversight in serving a notice of appeal on a person who was not a party to the proceedings below is excusable, and the absence of prejudice to the affected party - who retains the right to be heard - supports the extension of time for service.
Court orders
#- 1.Extension of time granted to the applicant to serve the notice of appeal lodged in the superior court on 8th May 2000 by seven days, so that a copy of the notice of appeal must be served on CMC Holdings Limited by 30th June 2000.
- 2.The record of Civil Application No. Nai. 152 of 2000 to be served on CMC Holdings Limited by 30th June 2000 so that that application can be heard between all affected parties at the same time.
- 3.No orders made on the alternative prayer for dispensing with service, the prayer not having been pursued.
- 4.No order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- High Court Civil Case No. 1135 of 1998
- Jurisdiction invoked
- Rules 4 and 76 of the Rules of this Court (the Court of Appeal Rules); no constitutional provision invoked
Relief refused
#Dispensing with service of the notice of appeal on CMC Holdings Limited (alternative prayer, including extension of time to lodge the dispensation application)
The prayer was opposed by counsel for Caneland Limited but was not pursued by the applicant, who was content to rely on the granted primary prayer; the court made no orders on it.
Costs of the application
Although the applicant sought that costs of the application be provided for, the court declined to award costs in all the circumstances.
Costs
No order as to costs - verbatim: 'In all the circumstances of this application, I make no order as to costs.'
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.
I grant to the applicant the extension of time to serve the notice of appeal lodged in the superior court on 8th May, 2000 by seven days from to-day, so that a copy of the said notice of appeal must be served on CMC Holdings Limited by 30th June, 2000.
I also direct that the record of Civil Application No. Nai. 152 of 2000 be served on CMC Holdings Limited by 30th June, 2000 so that that application can be heard between all affected parties at the same time.
In all the circumstances of this application, I make no order as to costs.
Even experienced advocates could overlook service of a notice of appeal on a party who is not enjoined in the proceedings and rule 4 of the Rules of this Court caters for, interalia, extension of such time to serve such notice of appeal on a party affected.
In any event there will be no prejudice suffered by CMC Holdings Limited. It will have its day in the court, if it so wishes.
Issues in the judgment
#Corrupted/garbled text in the ruling: the phrase 'correIc tlaym ssoa.t isfied' appears to be a typographical corruption of 'correctly so. I am satisfied'.
The title and number of the application before the court are not stated in the copy of the ruling. The only application number mentioned is Civil Application No. Nai. 152 of 2000, whose record the court directed to be served on CMC Holdings Limited; the phrasing suggests it is a separate, pending application rather than the application disposed of here.
The full party list and formal roles are not set out: the ruling refers to unnamed 'second and third respondents', describes Driscoll Investments Limited only as 'the applicant', and mentions Dolphin Holdings Limited and Delphis Bank Limited without stating their roles; party designations in this brief are inferred.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DRISCOLL INVESTMENTS LIMITED v CANELAND LIMITED & 3 OTHERS [2000] KECA 188 (KLR)", Case Analysis (2000). Not stated in the judgment (the only application number mentioned is Civil Application No. Nai. 152 of 2000, which appears to be a separate, pending application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/188/eng@2000-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.