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Court of AppealStruck OutCivil Appeal Appli No. 296 of 2001

Mistry Jadva Parbat & Company Ltd v Ameeri Kassim Lakha & 2 others [2008] KECA 259 (KLR)

Court of Appeal
8 February 2008
910 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a late attempt to kill an appeal, ruling the 30-day deadline applies to old appeals too.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on a notice of motion dated 8th December 2006, brought by Mistry Jadva Parbat & Company Ltd under Rule 80 of the Court of Appeal Rules seeking to strike out the notice of appeal dated 29th May 2001 and the record of appeal filed by Ameeri Kassim Lakha, the appellant in the underlying appeal from a High Court ruling of Hewett, J of 25th May 2001 in H.C.C.C. No. 2513 of 1997. The 1st respondent raised a preliminary objection that the application breached the proviso to Rule 80, which bars strike-out applications brought more than thirty days after service of the record of appeal; that proviso was introduced by L.N. No. 152 of 2002, published on 30th August 2002. The court applied the principle that legislation affecting procedure only operates retrospectively unless a contrary intention appears, drawing on the Nyali Ltd line of authority and section 27(1) of the Interpretation and General Clauses Act. It held that the proviso came into operation on 30th August 2002 and applies retrospectively to all appeals pending at that date, though not to strike-out applications already pending on that date. As the record had been served on 21st November 2001 and the application filed on 14th December 2006, it was hopelessly out of time and was struck out with costs to the respondents. The underlying appeal remains live; only the strike-out application was disposed of.

Questions the Court framed

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

  1. 1.Whether the application to strike out the notice of appeal and record of appeal, filed over four years after service of the record, was barred by the thirty-day limitation in the proviso to Rule 80 of the Court of Appeal Rules
  2. 2.Whether the proviso to Rule 80, introduced by L.N. No. 152 of 2002 and published on 30th August 2002, applies retrospectively to appeals filed before its commencement

Key legal issues

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01

Retrospective operation of the time limitation in the proviso to Rule 80

Holding

The proviso to Rule 80 came into operation on 30th August 2002 upon Gazette publication and, being a procedural rule, applies retrospectively to all appeals filed before that date; however, it does not apply to applications to strike out that were themselves already pending on that date

Reasoning

By section 27(1) of the Interpretation and General Clauses Act subsidiary legislation comes into operation on the day of publication. Rules of construction hold that legislation affecting procedure only prima facie operates retrospectively, while legislation affecting substantive rights requires clear intention. The Rules Committee's aim of curtailing belated interlocutory applications would be defeated if the proviso applied only to appeals filed after enactment. The application, filed over four years after commencement, was caught by the time bar.

p. 2

Legal principles established

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  • A proviso limiting the time for applying to strike out an appeal applies retrospectively to all appeals pending at its commencement, because procedural legislation operates retrospectively unless a contrary intention is shown

Court orders

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  1. 1.The application (notice of motion dated 8th December 2006) to strike out the notice of appeal and record of appeal was struck out as time-barred
  2. 2.Costs of the application awarded to the respondents

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. 2513 of 1997
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (application to strike out notice of appeal/record of appeal)

Relief refused

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Order striking out the notice of appeal dated 29th May 2001 and the record of appeal

The application was brought outside the thirty-day period prescribed by the proviso to Rule 80 of the Court of Appeal Rules

p. 2

Costs

Costs of the application awarded to the respondents

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.

We hold, therefore, that the proviso to Rule 80 came into operation on 30th August, 2002 when it was published in the Gazette and being a procedural rule operates retrospectively to all appeals which had been filed before the rule became operational.
p. 2retrospectivity of procedural rules
The rule would of course not apply to applications to strike out appeals which were pending on the date it became operational, the present application not being one of them.
p. 2scope of the proviso
The present application is, thus, caught by the time bar in the proviso. We strike it with costs to the respondents as being time – barred.
p. 2final orders/disposition
Whether or not legislation operates retrospectively depends on the intention of the enacting body as manifested by the legislation.
p. 2canon of construction on retrospectivity (adopted from Nyali Ltd)

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, "Mistry Jadva Parbat & Company Ltd v Ameeri Kassim Lakha & 2 others [2008] KECA 259 (KLR)", Case Analysis (2008). Civil Appeal Appli No. 296 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/259/eng@2008-02-08

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