Charter House Investment Limited v Simon K. Sang & 3 others [2012] KECA 18 (KLR)
The bottom line
#The Court of Appeal refused to extend time for a costs reference because the applicant hid parallel court cases, showing Kenyan courts punish non-disclosure even when the underlying claim might have merit.
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 time within which to file a reference against the Deputy Registrar's taxation ruling of 29th September 2011 should be extended under Rule 112 of the Court of Appeal Rules
- 2.Whether sufficient notice of the rescheduled taxation ruling was given to the applicant
- 3.Whether the applicant's non-disclosure, concealment and institution of parallel proceedings constitute abuse of court process disentitling it to the discretionary relief
Key legal issues
#Effect of non-disclosure and parallel proceedings on a discretionary extension-of-time application
Deliberate concealment and filing of parallel proceedings seeking similar reliefs constitute abuse of court process and disentitle the applicant to the extension despite the single judge's unfettered discretion.
The court found the applicant instituted a constitutional petition and a stay application without disclosing them, risking conflicting decisions. Citing Tiwi Beach Hotel Ltd vs Stamp, the court held that non-disclosure is an affront to the dignity of the court irrespective of the merits of the relief sought, and that abuse of process obstructs the just and speedy determination of proceedings.
Whether the applicant had sufficient notice of the taxation ruling
The Deputy Registrar's notice dated 26th September 2011, affixed on the court notice board and the door to the Deputy Registrar's court, constituted sufficient notice; the ruling would not have been read ex-parte had a representative attended.
The notice stated the Deputy Registrar would not sit on 27th September and fixed delivery of the ruling in CA 315 of 2004 for 29th September 2011 at 2.00 p.m. The court found the notice was permanently affixed, so the applicant's complaint of lack of notice failed.
Legal principles established
#- Conduct constituting abuse of court process or concealment/non-disclosure of material facts contravenes the overriding objective and entitles the court to deny the guilty party the relief sought.
- The overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act is both procedural and substantive, and every exercise of power under the Act or the Rules must facilitate and attain it.
Court orders
#- 1.The application for extension of time to file a reference is dismissed
- 2.Costs of the application awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya (Deputy Registrar, taxation)
- CA 315 of 2004 (taxation); Constitutional Petition No. 2 of 2011 filed in parallel
- Jurisdiction invoked
- Rule 112(3) of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act (extension of time, single judge discretion)
Relief refused
#Extension of time to apply to refer the Deputy Registrar's taxation ruling of 29th September 2011 to a Judge of the Court of Appeal
The applicant did not come to court with clean hands: it concealed material facts including parallel constitutional proceedings; such conduct constitutes abuse of the court process and breaches the overriding objective
Costs
this application is 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.
In the result, this application is dismissed with costs to the Respondent.
In the circumstances before me I find the concealment was deliberate and in my view both the concealment or non-disclosure and the filing of parallel proceedings seeking similar reliefs constitute an abuse of the court process.
I think that any conduct capable of constituting abuse of Court process or concealment/nondisclosure of material facts contravenes both the letter and the spirit of the overriding objective (O2).
It matters not upon a point of this nature being taken whether the applicant was entitled to or that the Court would have granted relief sought in any event, that is to say, leaving aside the non-disclosure for it is the affront to the dignity and credulity of the Court that is in point.
Issues in the judgment
#The case number of this application is not stated in the judgment; the reference to CA 315 of 2004 is the number of the appeal whose bill of costs was taxed, not this application.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charter House Investment Limited v Simon K. Sang & 3 others [2012] KECA 18 (KLR)", Case Analysis (2012). Court of Appeal Civil Application (not stated in judgment; ruling delivered in CA 315 of 2004 taxation matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/18/eng@2012-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.