[2008] KECA 144 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

CIVIL APPLI. NAI NO. 10 OF 2008 (UR. 7/08)

1. VANTAGE ROAD TRANSPORTERS LTD

2. SHAHID PERVEZ BUTT …………..........……………….… APPELLANTS

AND

1. MISTRY VALJI NARAN MULJI

2. JANENDRA RAICHAN SHAH

3. VIRCHAND MULJI MALDE

4. RATILAL GHELA SAMAT

5. PREMAC PROPERTIES LTD

6. EQUITORIAL COMMERCIAL BANK LTD ….....… RESPONDENTS

(Application for leave to file and serve notice of appeal out of time from the ruling of the High Court of Kenya at Mombasa (Mwera, J.) dated 29th July, 2007

in

H.C.C.S. NO. 55 OF 2005

RULING

The jurisdiction of the Court in an application under rule 4, which this one is, is discretionary which discretion is not only unfettered but must be exercised on evidence and sound legal principles. The applicants, Vantage Road Transporters Ltd, and Shahid Pervez Butt have prayed that I exercise that jurisdiction and grant them an extension of time within which to file and serve a fresh Notice of Appeal. They had filed and served an earlier notice of appeal the basis upon which they lodged Civil Appeal No. 274 of 2005, which was struck out as incompetent because, firstly, a certified copy of the order appealed against had not been included in the record of appeal, and secondly, that they did not obtain prior leave to appeal against that order.

The order the applicants had sought to challenge in the struck out appeal was made on 29th July 2005, by Mwera J. and by that order the learned Judge committed Shahid Pervez Butt to Civil jail for three months for disobeying an order of injunction which had been issued pursuant to the provisions of 0. 39 of the Civil Procedure Rules. Following the decision to strike out the applicants’ appeal, they moved this Court for an order staying execution of the order of committal. However, that application, to wit Civil Application No.223 of 2005, was struck out as incompetent on the ground that when the appeal was struck out it went with the notice of appeal which had originated it, with the result that Civil Application No. 223 of 2005 was not supported by any notice of appeal.

The applicants want to restart the appellate process and argue that they have the right to do so and that they came to court promptly. It is also their contention that their intended appeal is not only meritorious, but that it has overwhelming chances of success. Mr. Kaluma, counsel who prosecuted the application on behalf of the applicants submitted on various aspects of the grounds they intend to rely on in their intended appeal.

Mr. Satish Gautama for the named respondents expressed the view that the applicants do not have an automatic right of appeal, and that the period for seeking leave to appeal having expired, any extension of time will serve no purpose. Besides, he continued, to urge, if any appeal would be lodged, it will be incompetent and liable to be struck out. In his view granting an extension will be prejudicial to the respondents.

It was common ground that the 2nd applicant, Butt, was committed to civil jail pursuant to the provisions of Order 39 of the Civil Procedure Rules. He was alleged to have breached an order of injunction. Provisions for breach are contained in 0. 39 rule 2A (2), which inter alia provides that in the event of breach, the person in breach will be liable to be detained in prison for a term not exceeding six months. The rule was introduced by L.N. No. 36 of 2000. O.XLII of the Civil Procedure Rules sets out provisions of the Civil Procedure Rules in which an automatic right of appeal is granted. O.39 rule 2A (2) is not included. Consequently any appeal from an order made thereunder has to be with leave (see section 75 (1) of the Civil Procedure Act.) It is on this basis that Mr. Gautama argued that in absence of leave to appeal, no competent appeal may be lodged, and in his view the time stipulated for applying for such leave having lapsed, the applicants may not file any competent appeal against the order of committal.

The applicants contend that they have applied for leave in the High Court. I wish to observe that on 27th July 2007 this Court dismissed an application by the applicants for leave to appeal. The application was made in Civil Appeal No. 274 of 2005, which appeal as we stated earlier was struck out. The order dismissing the application for leave was included in the order striking out that appeal. It is doubtful whether in view of this the applicants were right in returning to the superior court to seek leave to appeal. The application for leave which was dismissed by this Court, on 27th July 2007, must have been made pursuant to the provisions of rule 39(b) of the Court’s Rules which permits applications to this Court after a similar application has been made

to the superior court and refused.

In refusing leave this Court said:

“Regarding the prayer for leave to institute an appeal we note that rule 39 of this Court’s Rules fixes a time limit within which to seek such leave. We have no evidence that the appellants in the struck out appeal have either applied for or obtained an extension of time within which to seek the leave. In the circumstances, we decline to grant the leave sought and dismiss the prayer.”

So as the matter stands, the applicants have not obtained any leave to appeal. I am not unmindful of the provisions of rule 74(4) of the Court’s Rules, which provides that:

“74(4) when an appeal lies only with leave or on a certificate that a point of law of general public importance is involved, it shall not be necessary to obtain such leave or certificate before lodging the notice of appeal.”

That provision only applies to notices of appeal filed or to be filed within the stipulated 14 days after the decision against which an appeal is intended, because in filing such notices time is of the essence, and the sub-rule was promulgated to clarify the position. Otherwise notices of appeal filed before leave would have been regarded as incompetent or invalid.

What then is the position is this matter? The applicants have not obtained leave to appeal and from the look of things they might not obtain any.

Besides, the applicants’ appeal was struck out on 27th July 2007. This motion was not filed until 11th February 2008. The argument by their counsel is that they believed the notice of appeal which originated their struck out appeal was still valid and in that belief they relied on earlier decisions of this Court. They filed this application after the Court ruled against their view, on 8th February 2008. The delay in bringing this application was inordinate. As the court pointed out in its ruling of 8th February 2008, it is only one decision which tended to weakly support their view. The position of the authorities is that there was no firm basis for adopting the view learned counsel said they did. What is clear is that they were gambling over the rights, if any, of these applicants.

Moreoever, there is no prayer for an order extending the time within which to lodge a record of appeal. Any extension of time within which to file and serve a Notice of Appeal without an extension of time within which to file a record of appeal will therefore serve no purpose. The usual practice of the court in extending time within which to file a notice of appeal, is to grant 14 days or less within which to do so. To apply for an extension of time within which to lodge a record of appeal one needs a formal application, which application has to be processed and listed for hearing. Even assuming that it is given a priority listing, it might not be heard within one month of its filing, by which time the time allowed for filing a fresh notice of appeal would have long expired.

This application lacks merit. In the circumstances I am disinclined to exercise my discretion in favour of extending the time within which to file and serve a fresh notice of appeal.

I dismiss the application with costs to the respondents.

Dated and delivered at Nairobi this 31st day of July 2008

S.E.O. BOSIRE

…………………………….

JUDGE OF APPEAL

I certify that this is atrue copy of the original.

DEPUTY REGISTRAR