[2015] KEHC 4420 (KLR)
The court held that the requirement to serve a notice of appeal applies only to appeals to the Court of Appeal under the Appellate Jurisdiction Act, not to appeals before the High Court. In the High Court, an appeal is properly commenced by filing and serving a Memorandum of Appeal, which the appellant had done. The...
Source-derived case information.
- Citation
- [2015] KEHC 4420 (KLR)
- Parties
- Appellant: TKM Maestro Ltd; Respondent: Equipment Masters E.A. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 64 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection to Competence of Appeal
- Outcome
- application dismissed
- Judges
- A Mabeya, DA Onyancha
- Legal Topics
- Appeal Procedure, Default Judgment, Vat Disputes, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
TKM Maestro Ltd
Appellant
Equipment Masters E.A. Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection to Competence of Appeal
Legal Issues
- 1 Whether the appeal is incompetent for failure to serve a notice of appeal.
- 2 Whether the issuance of ETR receipts after the fact renders the appeal incompetent.
Ratio Decidendi
The court held that the requirement to serve a notice of appeal applies only to appeals to the Court of Appeal under the Appellate Jurisdiction Act, not to appeals before the High Court. In the High Court, an appeal is properly commenced by filing and serving a Memorandum of Appeal, which the appellant had done. The court further held that the issue of whether the subsequent issuance of ETR receipts affects the substance of the dispute is a matter for determination in the main appeal, not at the preliminary stage. Consequently, the application challenging the competence of the appeal was found to lack merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 29th October, 2012 is dismissed.
- Costs shall abide the outcome of the appeal.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO.64 Of 2012
TKM MAESTRO LTD..............................................APPELLANT/RESPONDENT
VERSUS
EQUIPMENT MASTERS E.A. LTD.........................RESPONDENT/APPLICANT
RULING
1. The Appellant filed an application dated 1st February, 2012 in Milimani Commercial Courts CMCC No. 4612 of 2011 seeking to set aside default judgment, entered against it and for leave to enter appearance out of time and defend itself in the suit. The Applicant prayed in the alternative for leave to settle the decretal sum of Kshs.1,314,550/90 in monthly instalments of Kshs. 75,000/=. The said application was dismissed by the trial court on 17th February, 2012 provoking the filing of this appeal on 27th February, 2012.
2. Amongst the grounds upon which the appeal was filed was that:-
that the learned magistrate misdirected herself and erred in law by finding and /or assuming that Value Added Tax does not become due and payable upon issuance of an invoice.
that the learned magistrate erred in law and in fact by choosing to make a final determination on the issue of Value Added Tax raised in the Appellant's draft defence and counter-claim rather than letting the issue be canvassed at the full trial hence denying the Appellant an opportunity to defend a claim to which the Respondent is not entitled to from the Appellant.
3. Following the service of the Record of Appeal, the Respondent filed a Notice of Motion dated 29th October, 2012 seeking leave to raise an objection to the competence of the appeal and orders that the Memorandum of Appeal dated 24th February, 2012 is incompetent and that it be struck out. The motion is premised on the grounds that the Appellant has failed to comply with the mandatory provision of the appeal process as provided for under the Appellate Judicature Act; that the Respondent has now issued the Appellant with ETR receipts non issuance of which led to this appeal and that the Respondent has to date not been served with a Notice of Appeal.
4. In response thereto Dr. Tony S.N. Monda swore a Replying Affidavit dated 6th November, 2012. He contended that the provisions of the Appellate Jurisdiction Act, Cap 9 and the Judicature Act, Cap 8 are irrelevant in this appeal for the reason that this appeal lies before the High Court and not the Court of Appeal and that the Respondent's complaints are misconceived vis a vis the provisions of the said statutes. He stated that the main substance of the suit before the trial court and this appeal is that the relevant Tax Invoices should have been issued sometime in the year 2010 and not thereafter. He further stated that the alleged issuance of such receipts by the Respondent in September, 2012 is not only irrelevant, but also sub-judice.
5. I have considered the depositions of the parties. What falls for this court's determination is whether or not the appeal is incompetent for failure to serve a notice of appeal and whether or not issuance of ETR receipts non issuance of which led to the suit in the lower court makes this appeal incompetent.
6. On the effect of failure to serve a notice of appeal, I am in total agreement with the Appellant's position that the provision for service of notice of appeal is applicable in the Court of Appeal under the Appellate Jurisdiction Act, Cap 9 and not the High Court. Appeals in this court are commenced by the filing and service of the Memorandum of Appeal which the Appellant duly did. That ground is dismissed.
7. On the second issue, my view is that the same ought to be heard on merit because for this court to make a proper conclusion to it, it has to inquire on the origin of the dispute which inquiry cannot be properly made in the application but the main appeal. I decline to deal with it at this stage. In the end I find no merit in this application and dismiss it. Costs shall abide the outcome of the appeal.
Dated and Signed at Nairobi this 18th day of June, 2015.
…………………….
A. MABEYA
JUDGE
Read, Delivered and Signed at Nairobi this 19th day of June, 2015.
…………………….
D A ONYANCHA
JUDGE