Kamlesh Mansukhlal Damji Pattni v International Centre for Policy and Conflict & 5 others [2013] KECA 482 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that any group allowed to take part in a court case can appeal its outcome, even without formal joinder.
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 International Centre for Policy and Conflict (ICPC) is a legal entity with locus standi to file a notice of appeal
- 2.Whether ICPC, having participated but not been formally joined as an interested party in the judicial review application, has a right of appeal against the High Court's decision
- 3.Whether ICPC, having only opposed the dismissed prayer for certiorari, has any ground to appeal the grant of prohibition orders
- 4.Whether the notice of appeal filed on 4th April 2013 was served on Pattni's advocates within the seven days prescribed by Rule 77(1) of the Court of Appeal Rules
Key legal issues
#Locus standi of an unincorporated association in constitutional and judicial review proceedings
ICPC has the requisite legal personality; Article 260 defines 'person' to include an unincorporated body and Article 22(1) allows any person to enforce Bill of Rights provisions on behalf of the public.
The court read Articles 22(1) and (2)(c), 23(3)(f) and 260 together: any person may sue on their own behalf or on behalf of the public, judicial review orders are among available remedies, and 'person' includes unincorporated bodies. Counsel's reliance on Article 259 to exclude unincorporated bodies from judicial review was rejected. ICPC therefore cannot be dismissed as a non-entity incapable of filing a notice of appeal.
Right of appeal of a participant who was not formally joined as an interested party
ICPC, having been allowed to address the High Court under Order 53 Rule 6 of the Civil Procedure Rules, has a right to appeal Mutava J's decision despite not being formally joined as an interested party.
The court held that participation, not formal joinder, is the touchstone of the right to appeal. Mutava J permitted ICPC to oppose the judicial review application, and that participation vests a right of appeal. The court expressly disagreed with counsel's submission that only the formally enjoined interested party (Arap Bii) could appeal. Whether the decision affects ICPC's Petition No. 279 of 2011 was left to the appeal court.
Whether a party which opposed only a dismissed prayer can appeal the grant of other orders
The court declined to determine this ground, holding that the bearing of the High Court decision on ICPC's pending petition is a matter for the full appeal court.
The applicants argued ICPC obtained what it sought since only the certiorari prayer it opposed was dismissed. The court accepted that ICPC had indicated it sought recovery of KShs. 5.8 billion from Pattni in Petition No. 279 of 2011, and held that whatever bearing the prohibition orders have on that petition could not be decided on the material before it in a striking-out application.
Whether the notice of appeal was served within the seven days prescribed by Rule 77(1) of the Court of Appeal Rules
On a balance of probabilities, the applicants failed to prove service was on 17th rather than 11th April 2013; the notice was served in time and is competent.
The court weighed the process server Opany's affidavit evidence of an attempted service on 11th April at a fenced compound against Pattni's claim of service on 17th April. Neither party called the process server or the alleged Mr. Dawood for cross-examination, and Mr. Kalove did not swear an affidavit confirming or denying Mr. Dawood's existence. The evidential gap meant the applicants failed to discharge their burden of proof.
Legal principles established
#- An unincorporated body is a 'person' with legal capacity to participate in constitutional and judicial review proceedings under Articles 22, 23(3)(f) and 260 of the Constitution.
- Any party that participates in a case in the trial court has a right to appeal the court's decision, whether or not it was formally joined as an interested party.
Court orders
#- 1.Civil Application Nos. 89 and 94 of 2013 seeking to strike out ICPC's notice of appeal are dismissed
- 2.Costs of both applications awarded to ICPC
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi, Constitutional and Judicial Review Division
- J.R. Misc. Civil Application No. 305 of 2012
- Jurisdiction invoked
- Appellate jurisdiction over an intended appeal from the High Court under the Court of Appeal Rules (Rule 77(1) on service of notice of appeal); interlocutory application to strike out a notice of appeal
- Consolidated with
- Civil Application No. NAI 94 of 2013 (UR)
Relief refused
#Striking out of ICPC's notice of appeal as incompetent and an abuse of court process
ICPC has legal personality under Article 260 of the Constitution and a right of appeal as a participant in the proceedings; the notice was served in time
Costs
Both applications dismissed with costs (costs awarded against the applicants, Pattni and the DPP)
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 therefore find that ICPC has the requisite legal personality to be involved in these proceedings.
In our view, any party that participates in a case in the trial court has a right to appeal the court’s decision.
Consequently, we dismiss Civil Application Nos. 89 and 94 of 2013 with costs.
Issues in the judgment
#The judgment cites both Rule 77(1) and Rule 76(1) of the Court of Appeal Rules as the provision requiring service of the notice of appeal within seven days, without reconciling the two references.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamlesh Mansukhlal Damji Pattni v International Centre for Policy and Conflict & 5 others [2013] KECA 482 (KLR)", Case Analysis (2013). Civil Application No. NAI 89 of 2013 (UR 59/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/482/eng@2013-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.