Boya Rural Nursing Home Ltd v National Hospital Insurance Fund Board of Management [2005] KECA 39 (KLR)
The bottom line
#Kenya's Court of Appeal allowed NHIF's appeal against Boya Nursing Home to proceed, ruling it was filed on time and needed no special permission.
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 record of appeal was filed out of the prescribed time, having regard to the certificate of delay excluding the time required to prepare and deliver the proceedings
- 2.Whether the appellant required leave to appeal from the superior court or from the Court of Appeal
- 3.Whether defects in the form and heading of the proceedings and the appeal warrant striking out the record
Key legal issues
#Whether the appeal was lodged out of time
The appeal was filed within the prescribed 60 days because the Deputy Registrar's certificate of delay excluded the 59 days taken to prepare the proceedings; the assertion that proceedings were obtained earlier was unsupported by documents and contradicted by the certificate.
The notice of appeal and letter bespeaking proceedings were filed timeously. Rule 81(1) mandates exclusion of time certified as required to prepare and deliver proceedings, here 5th October to 2nd December 2004. The respondent's contention, based on an affidavit paragraph, that proceedings were received by 14th October 2004 was unsupported by any document and contradicted by the certificate of delay; no proof was adduced that the certificate was patently false, so the challenge to it was dismissed.
Whether leave to appeal was required
Leave was not required: the underlying proceedings were brought under Order LIII rule 1 of the Civil Procedure Rules seeking leave to apply for judicial review, and under that Order the appellant was entitled to appeal as of right.
The respondent had commenced proceedings before the High Court under Order LIII rule 1 of the Civil Procedure Rules seeking leave to apply for orders of judicial review, namely mandamus and prohibition, to compel the appellant to pay claims under the National Hospital Insurance Fund Act. The court held that under this Order the appellant was entitled to appeal as of right without seeking leave of either the superior court or the Court of Appeal, and so dismissed that limb of the application.
Whether defects in form and heading justified striking out
Deviations from the prescribed format did not justify striking out the appeal, the objection having been raised belatedly and being one of form rather than substance.
Mr. Wasuna argued that the recital of forms and headings was incorrect and the appeal should be struck out. Although the form of the proceedings and heading before the superior court and the appeal did not exactly follow the format prescribed in Farmers Bus Service & Others v Transport Licensing Appeal Tribunal, the court declined to strike out the appeal because the objection was raised belatedly and concerned only want of form, not substance.
Legal principles established
#- In computing the 60-day period for lodging an appeal, the time certified by the Deputy Registrar as required to prepare and deliver the proceedings is excluded under rule 81(1).
- Where proceedings are commenced under Order LIII rule 1 of the Civil Procedure Rules seeking leave to apply for judicial review, the party affected is entitled to appeal as of right and need not seek leave.
- A defect in the form or heading of an appeal, raised belatedly, is not a ground for striking out the appeal where it is a matter of form and not substance.
Court orders
#- 1.The motion to strike out the record of appeal in Civil Appeal No. 46 of 2005 is dismissed with costs to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C. Misc. Civil Application No. 250 of 2003
- Jurisdiction invoked
- Rules 80 and 81 of the Court of Appeal Rules (application to strike out the record of appeal)
Relief refused
#Striking out the record of appeal on the ground of late filing without leave
The certificate of delay excluded the 59 days required for preparation of proceedings, so the appeal was filed within time; and no leave was needed as the matter arose under Order LIII rule 1 which carried a right of appeal
Striking out the appeal for defects in form and heading
The objection was belatedly raised and went only to want of form rather than substance
Costs
The motion is dismissed with costs to the appellant (National Hospital Insurance Fund Board of Management).
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.
We are satisfied that the appeal so lodged by the appellant was properly and validly filed within the period prescribed by the rules.
Under this Order the appellant was entitled to appeal as of right and did not have to seek the leave of the superior court or of this Court.
In the result this motion fails and we order that it be and is hereby dismissed with costs to the appellant.
the objection goes only on the want of form rather than on the substance.
Issues in the judgment
#The name of the presiding judge of the High Court below appears in the cause title as 'Mr. Justice B. K. Tanui', which is similar to the surname of Court of Appeal judge P. K. Tunoi on the panel; the two are distinct persons but the near-identical names risk confusion.
The judgment states counsel for the applicant asserted the proceedings were received by '14th December, 2004' in one sentence while earlier recording his contention that the appeal should have been lodged 'not later than 14th December, 2004', and elsewhere that 'by 14th October, 2004 the appellant had obtained from the Deputy Registrar typed copies'; the October/December dates are internally inconsistent in the text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boya Rural Nursing Home Ltd v National Hospital Insurance Fund Board of Management [2005] KECA 39 (KLR)", Case Analysis (2005). Civil Appeal Appli 46 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/39/eng@2005-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.