Case ID:170547

Mercantile Life and General Assurance

Company Limited & another v Dilip M. Shah & 3 others [2021] eKLR

Case Metadata

Case Number:

Civil Case 550 of 2006

Parties:

Mercantile Life and General Assurance Company Limited & Mohammad Hassim Pondor (Suing on behalf of The International Air Transport –IATA) v Dilip M. Shah, Panakaj Meghji Shah, Kamal M. Shah & Five Continents Travel Ltd

Date Delivered:

22 Feb 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

David Amilcar Shikomera Majanja

Citation:

Mercantile Life and General Assurance

Company Limited & another v Dilip M. Shah & 3 others [2021] eKLR

Advocates:

Mr Gichuhi instructed by Wamae & Allen Advocates for the 2nd Plaintiff.

Ms Kamau instructed by Wandabwa and Company Advocates for the 4th Defendant.

Court Division:

Commercial Tax & Admiralty

County:

Nairobi

Advocates:

Mr Gichuhi instructed by Wamae & Allen Advocates for the 2nd Plaintiff.

Ms Kamau instructed by Wandabwa and Company Advocates for the 4th Defendant.

History Advocates:

One party or some parties represented

Case Outcome:

Application struck out with costs to the 2nd Plaintiff.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL AND TAX DIVISION

CORAM: D. S. MAJANJA J.

CIVIL CASE NO. 550 OF 2006

BETWEEN

MERCANTILE LIFE AND GENERAL ASSURANCE

COMPANY LIMITED.....................................1

ST

PLAINTIFF

MOHAMMAD HASSIM PONDOR (Suing on behalf of

The International Air Transport –IATA).....2

ND

PLAINTIFF

AND

DILIP M. SHAH ………………...................1

ST

DEFENDANT

PANAKAJ MEGHJI SHAH.......................2

ND

DEFENDANT

KAMAL M. SHAH.....................................3

RD

DEFENDANT

FIVE CONTINENTS TRAVEL LTD............4

TH

DEFENDANT

RULING NO. 2

1. By the ruling dated 15

th

January 2021, I struck out the 4

th

Defendant’s Notice of Motion dated 24

th

February 2020 seeking to set aside the Arbitral Award dated 13

th

August 2019 (“the Arbitral Award”) under

section 35

of the

Arbitration Act, 1995

. I also allowed the 2

nd

Plaintiff’s Chamber Summons dated 12

th

February 2020 for leave to enforce the Arbitral Award as a decree of this court under

section 36

of the

Arbitration Act

.

2. The 4

th

Defendant has now filed the Notice of Motion dated 28

th

January 2021 seeking leave to appeal to the Court of Appeal against the ruling dated 15

th

January 2021, leave to file the Notice of Appeal against the said ruling and an order of stay of execution of the decree pending hearing and determination of the intended appeal. It has invoked the provisions of

sections 1A, 1B, 3, 3A

and

75

of the

Civil Procedure Act

,

Order 43(2)

of the

Civil Procedure Rules

, the

Arbitration Act

and

Rule 7

of the

Arbitration Rules

.

3. The application is supported by the affidavit Dilip Shah, a director of the 4

th

Defendant, sworn on 28

th

January 2020. It is opposed by the 2

nd

Plaintiff through the replying affidavit of Allen Waiyaki Gichuhi, its advocate on record, sworn on 5

th

February 2021. The parties filed brief written submissions in support of their respective positions.

4. I have considered the application alongside the depositions and submissions and I propose to dispose of the matter on the basis of a preliminary and fundamental issue which the parties did not address or pay attention to but which nevertheless goes to the jurisdiction of this court to grant the orders sought. It is whether this 4

th

Defendant requires leave to appeal in order to file the Notice of Appeal.

5. In order to prefer an appeal to the Court of Appeal, a party who desires to appeal must lodge, in the Superior Court, a Notice of Appeal in accordance with

rule 74

of the

Court of Appeal Rules

within 14 days of the decision appealed from. It is the filing of the Notice of Appeal which demonstrates that the party dissatisfied with the decision of the High Court intends to move the Court of Appeal.

6. It is not necessary for the party intending to appeal to seek leave in order to file the Notice of Appeal as the 4

th

Defendant’s application implies. This issue is resolved by

Rule 74(4)

of the

Court of Appeal Rules

which states that:

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.

7. In

Judicial Commission of Inquiry into the Goldenberg Affair and Others v Job Kilach

NRB CA Civil Appl. No. NAI 77 of 2003 [2003] eKLR

, the Court of Appeal, after setting out

Rule 74(4)

aforesaid observed as follows:

This rule clearly deals with two situations, namely:

(i) where leave to appeal is necessary; or

(ii) where a certificate that a point of law of general public importance is involved.

In either case, it is not required that before one files a notice of appeal, one must have obtained the leave or the certificate. One can file the notice of appeal and thereafter obtain the leave or the certificate as the case may be

. Mr. Nowrojee did not show us any authority from this Court or from anywhere else where it has been decided that the obtaining of leave or a certificate is a condition precedent to the filing of a notice of appeal. We are not ourselves aware of any such authority and we would be surprised if there were to be one for such a decision would be clearly contrary to the plain meaning of the words in rule 74(4) of the rules.

[Emphasis mine]

8. Although the Supreme Court was speaking of its own rules in

Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commissions and 7 Others

SCK Appl. No. 16 of 2014 [2014] eKLR

, the following observation is relevant to the application of the

Court of Appeal Rules

and to this case. It stated that, “

Suffice it to say that under the current Court Rules, one need not seek and get certification before filing a Notice of Appeal. A Notice of Appeal is a primary document to be filed outright whether or not the subject matter under appeal is that which requires leave or not. It is a jurisdictional pre-requisite.”

9. Without the Notice of Appeal, this court lacks jurisdiction to grant leave to appeal against the ruling dated 15

th

January 2021 or to grant an order of stay pending appeal. Consequently, the Notice of Motion dated 28

th

January 2021 is struck out with costs to the 2

nd

Plaintiff.

DATED

and

DELIVERED

at

NAIROBI

this

22

nd

day of FEBRUARY 2021.

D. S. MAJANJA

JUDGE

Mr Gichuhi instructed by Wamae & Allen Advocates for the 2

nd

Plaintiff.

Ms Kamau instructed by Wandabwa and Company Advocates for the 4

th

Defendant.