Pharmacy & Poisons Board v Sipri Pharmaceutical Limited & another [2000] KECA 307 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a fresh appeal after striking out a defective one, ruling that striking out is punishment enough and only the remaining delay needs explaining.
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 applicant should be granted leave under rule 4 for extension of time to file a fresh Notice of appeal after the original appeal was struck out
- 2.Whether the delay in bringing the application was inordinate and satisfactorily explained
- 3.Whether the applicant's failure to complain at the hearing of the Notice of motion about absence of leave for prohibition and mandamus bars the grant of leave to file a fresh appeal
Key legal issues
#Extension of time under rule 4 after striking out of an appeal
Extension granted; the delay of 25 days since the striking out was satisfactorily explained by the time taken to obtain certified copies.
The court held that the applicant had already been punished by the striking out of the defective appeal for the very defects the 1st respondent now relied on. The only unexplained period was the 25 days between the striking out on November 25, 1999 and the application of December 21, 1999, which was explained by the time taken to obtain certified copies from the superior court at Kisumu. The 2nd respondent did not oppose the application.
Whether prior awareness of the appeal's incompetence disentitles the applicant from the discretion
The court rejected the 1st respondent's contention that time should run from November 24, 1998 when the applicant first learned the appeal was incompetent.
The 1st respondent argued the applicant should have withdrawn the appeal upon learning it was incompetent, and that the delay from November 24, 1998 to December 21, 1999 was unexplained. The court disagreed, holding that the striking out of the appeal was itself punishment enough and that only the 25-day period after striking out required explanation, which was adequately accounted for.
Whether failure to raise absence of leave for prohibition and mandamus at the hearing bars the point on appeal
It does not bar the grant of leave, because the order served on the applicant intimated that leave had been granted ex-parte by the judge in chambers.
The 1st respondent contended that because the applicant did not complain at the hearing of the Notice of motion that leave for prohibition and mandamus had not been obtained under Order 53, it could not raise the point on appeal. The court held that the order served on the applicant indicated leave had been granted ex-parte, so the applicant's silence was not a bar to a fresh appeal raising that issue.
Legal principles established
#- Where an appeal has already been struck out for defects, the striking out itself is sufficient punishment and the court may still extend time for a fresh appeal where the remaining delay is explained.
- In an extension-of-time application following striking out of an appeal, the relevant period for explaining delay is only the period between the striking out and the filing of the new application.
- A party's participation in a hearing without complaining about absence of leave for judicial review orders is no bar where the order served intimated that leave had been granted ex-parte.
Court orders
#- 1.Application for extension of time granted with costs
- 2.Notice of appeal to be filed in court within 30 days of the ruling
- 3.Memorandum of appeal and record of appeal to be filed and served within 30 days from the date the fresh Notice of appeal is filed in court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C. Misc. Application No. 101 of 1997
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
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.
the applicant had already been punished, for filing and insisting on going on with a defective appeal, by the fact that that appeal was struck out, for the very defects, that the 1st respondent now urges that the applicant ought to be punished for
I am satisfied that the only period to be considered is the aforementioned 25 days which counsel for the 1st respondent did not direct his efforts to and in the exercise of my discretion, I am of the view that that delay had been satisfactorily explained
the application is granted with costs and the Notice of appeal must be filed in court within 30 days of this ruling and the memorandum of appeal and record of appeal must also be filed and served within 30 days from the date the fresh Notice of appeal is filed in court
Issues in the judgment
#The judgment does not name the parties or give the application number; the applicant and respondents are referred to only generically, limiting identification of the case.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pharmacy & Poisons Board v Sipri Pharmaceutical Limited & another [2000] KECA 307 (KLR)", Case Analysis (2000). Civil Application (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/307/eng@2000-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.