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Court of AppealOtherCivil Application No. NAI. 106 of 2000 (UR.51/2000)

Caltex Oil (Kenya) Limited v Rono Limited [2001] KECA 144 (KLR)

Court of Appeal
29 November 2001
183 words in judgment
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·~1 min to read original · ~4 min brief

The bottom line

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Caltex withdrew its late-appeal application before the Court of Appeal decided it, and each side walked away bearing its own costs.

What this practically means

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Executive summary

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This brief ruling of the Court of Appeal at Nairobi, delivered on 29 November 2001 by Tunoi, Lakha and O'Kubasu JJ.A., disposed of Civil Application No. NAI. 106 of 2000 (UR.51/2000) in which Caltex Oil (Kenya) Limited, as applicant, sought extension of time within which to file the Notice of Appeal and the Record of Appeal in an intended appeal against the judgment and decree of the High Court of Kenya at Nairobi (Ole Keiwua J) dated 15 February 1999 in H.C.C.C. No. 1388 of 1992, Rono Limited being the respondent. The court decided nothing on the merits of the extension application. Before any substantive determination, Mr. Muthoga, counsel for the applicant, made an informal application to withdraw the reference, and Mr. Esmail, appearing for the respondent, did not object. The court accordingly recorded that the reference stands withdrawn. On costs, the court observed that costs are always at the discretion of the court and, exercising that discretion, made no order as to costs, the ordinary effect being that each party bears its own costs of the application. No statute and no case authority is cited anywhere in the ruling, no issues of law were framed or decided, and the High Court judgment of 15 February 1999 remains undisturbed. The decision is therefore of purely procedural significance: it terminates the extension-of-time application by withdrawal rather than by any adjudication. It establishes no binding rule for lower courts; its only general statement is that costs in the Court of Appeal are always at the discretion of the court.

Questions the Court framed

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

  1. 1.Whether the reference (the application for extension of time to file the Notice of Appeal and the Record of Appeal) should stand withdrawn upon the applicant's informal application, the respondent not objecting
  2. 2.What order as to costs should be made upon the withdrawal

Key legal issues

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01

Whether the reference could be withdrawn by the applicant's informal application without objection

Holding

Yes - upon the applicant's informal application to withdraw, unopposed by the respondent, the reference stands withdrawn and the extension-of-time application is disposed of without any determination of its merits.

Reasoning

The ruling records that Mr. Muthoga made an informal application to withdraw the reference and that Mr. Esmail for the respondent did not object. With both sides aligned, the court needed no formal hearing or argument and simply recorded the withdrawal, ending the extension-of-time application without any determination of its merits. The withdrawal was consensual in effect, since the respondent expressly raised no objection, and the court treated the informal application as sufficient to dispose of the reference.

p. 2
02

What order as to costs should follow the withdrawal

Holding

No order as to costs; costs are always at the discretion of the court, and the court exercised that discretion by making no order on the unopposed withdrawal.

Reasoning

The court stated that costs are always at its discretion and, on the facts of an unopposed withdrawal before any hearing on the extension application, chose to make no order as to costs. The practical effect is that each party bears its own costs of the withdrawn application. The statement reaffirms that no party is automatically entitled to costs on a withdrawal and that the outcome depends on the court's assessment of the circumstances.

p. 2

Legal principles established

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  • Costs in the Court of Appeal are always at the discretion of the court.

Court orders

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  1. 1.The reference stands withdrawn.
  2. 2.No order as to costs.

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1388 of 1992
Jurisdiction invoked
Not stated in the ruling; the matter was a procedural application (reference) in the Court of Appeal seeking extension of time to file the Notice of Appeal and the Record of Appeal.

Relief refused

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Extension of time within which to file the Notice of Appeal and the Record of Appeal in the intended appeal

Not granted on the merits: before any determination, the applicant's counsel informally applied to withdraw the reference and the respondent did not object, so the court made no ruling on the extension itself.

p. 2

Costs

No order as to costs.

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.

Upon Mr. Muthoga's informal application to withdraw this reference and Mr Esmail for the respondent not objecting the reference stands withdrawn.
p. 2Withdrawal of the extension-of-time reference
As to costs there are always at the discretion of the Court. The order that commends itself to us that we make as we hereby do no order as to costs.
p. 2Costs - discretion of the court; no order as to costs (final orders)

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, "Caltex Oil (Kenya) Limited v Rono Limited [2001] KECA 144 (KLR)", Case Analysis (2001). Civil Application No. NAI. 106 of 2000 (UR.51/2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/144/eng@2001-11-29

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