Mistry Jadva Parbat & Company Ltd v Ameeri Kassim Lakha & 2 others [2008] KECA 259 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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
#Retrospective operation of the time limitation in the proviso to Rule 80
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
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.
Legal principles established
#- 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
#- 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.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
Costs of the application awarded to the respondents
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 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.
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.
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.
Whether or not legislation operates retrospectively depends on the intention of the enacting body as manifested by the legislation.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.