Narendra Kumar Jashbai Patel v Bank of Baroda [2001] KECA 213 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that appeals exist only where a statute clearly grants them, and dismissed a debtor's challenge to a registered UK judgment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is a right of appeal to the Court of Appeal from a decision of the superior court refusing an application to set aside a registered foreign judgment
- 2.Whether rule 7 of the Foreign Judgments (Reciprocal Enforcement) Rules confers such a right of appeal, and if so whether it is intra vires the rule-making power
- 3.Whether, if an appeal lay at all, it required leave under section 75 of the Civil Procedure Act, and whether such leave was obtained
Key legal issues
#Whether an appeal lies to the Court of Appeal from an order refusing to set aside registration of a foreign judgment
No appeal lies. Rule 7 of the Foreign Judgments (Reciprocal Enforcement) Rules confers an appeal only from an order registering or refusing to register a judgment, not from an order refusing to set aside registration, and the statutory conditions must be strictly complied with.
The court applied the settled principle that rights of appeal are purely statutory and must be founded strictly on the statute. Rule 7 was confined by its own words to registration orders. An order refusing to set aside registration is a different order, so the appellant fell outside the express grant. Since the grant was limited, strict compliance was required and none was shown.
Whether rule 7 of the Foreign Judgments (Reciprocal Enforcement) Rules validly creates a right of appeal
Rule 7, insofar as it purports to create a right of appeal, is ultra vires section 15 of the Act and void, because the rule-making power does not empower the creation of rights of appeal.
Section 15 of the Act empowered the Chief Justice to make rules prescribing matters necessary or expedient for the purposes of the Act, enumerating specific matters such as security for costs, service of notice, determination of questions, prescribed matters and fees. None of these authorises conferring a right of appeal. A purported appeal right by implication would also be an impermissible 'side wind' conferring general appellate jurisdiction.
Whether the appeal could proceed under section 75 of the Civil Procedure Act
Any appeal from the order refusing to set aside registration would lie under section 75 of the Civil Procedure Act only with leave, and no leave was sought or obtained, which was fatal to the appeal.
Section 75(1) provides that an appeal lies as of right only from specified orders, and from any other order with the leave of the court making the order or of the court to which the appeal would lie. The order refusing to set aside registration was not a specified order. Leave was never asked for or given, so the appeal could not be entertained on that basis either.
Legal principles established
#- A right of appeal exists only if conferred by statute, and the conditions prescribed by the statute must be strictly complied with.
- A right of appeal must be expressly conferred; subsidiary legislation cannot create an appeal right by implication beyond the enabling rule-making power, and any such purported provision is void.
- An appeal from an order refusing to set aside registration of a foreign judgment, being outside rule 7, could only lie with leave under section 75 of the Civil Procedure Act, and without leave the appeal is incompetent.
Court orders
#- 1.Appeal dismissed
- 2.Appellant to pay the costs of the appeal
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
- H.C.C.C. No. 234 of 1997
- Jurisdiction invoked
- The court examined whether any statute conferred a right of appeal from an order refusing to set aside registration of a foreign judgment under the Foreign Judgments (Reciprocal Enforcement) Act (Cap 43), considering section 10 of that Act, rule 7 of the Foreign Judgments (Reciprocal Enforcement) Rules, and section 75 of the Civil Procedure Act; it found no competent appeal lay.
Relief refused
#The appellant's appeal against the dismissal of his application to set aside registration of the foreign judgment
No statutory right of appeal existed; rule 7 did not cover an order refusing to set aside registration and was in any event ultra vires the rule-making power; and any appeal under section 75 of the Civil Procedure Act required leave which was never sought or given
Costs
Appeal dismissed with costs 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.
It is well settled law that a right to appeal can only be founded on a statute and any party who seeks to avail himself of the right must strictly comply with the conditions prescribed by the statute.
the right of appeal conferred by rule 7 is from an order registering or refusing to register judgment. That is not the same as an order refusing to set aside the judgment.
Nothing therein, however, empowers or authorises the provision to create a right of appeal. If this was an attempt to give by implication a right of appeal, I consider that it is ultravires the rule making a power. In such a case, it is void.
I would therefore dismiss the appeal with costs.
Issues in the judgment
#The coram lists three Judges of Appeal (Tunoi, Lakha and Keiwua) but the judgment text contains only the ruling of Lakha, JA, with no indication of whether the other judges concurred or whether this was a single-judge determination.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- PAULINE WAMBUI NGARI v JOHN KAIRU & another [2009] KECA 420 (KLR)[2009] KECA 420 (KLR)24 Jul 2009followed
Cite this brief
#Cite this brief
Caselaw, "Narendra Kumar Jashbai Patel v Bank of Baroda [2001] KECA 213 (KLR)", Case Analysis (2001). Civil Appeal No. 80 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/213/eng@2001-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.