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Court of AppealStruck OutCivil Appeal No 30 of 1996· [1996] KECA 108 (KLR)

Rev. Peter A Indalo & 1 other v Fanana Investment Ltd

Court of Appeal of Kenya
22 March 1996
ROR. S. C. OmoloAAA. M. AkiwumiALA. A. Lakha
225 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because the Notice of Appeal was filed late, and a later time extension could not fix that mistake.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Kisumu (Omolo, Akiwumi and Lakha JJ.A) delivered on 22 March 1996 in Civil Appeal No 30 of 1996, in which the respondent, Fanana Investment Ltd, applied under rule 80 of the Court of Appeal Rules to strike out the appeal of Rev. Peter A Indalo and Oyani Christian Rural Services. The appeal lay from the judgment of the High Court of Kenya at Kisumu (Mr. Justice Mango) dated 29 July 1993 in H.C.C. Appeal No. 6 of 1993. The appellants' advocate conceded, and the court agreed rightly, that the appeal was out of time. The court held that the appellants' application for enlargement of time to file the record of appeal out of time - their second such application - could not assist them, because the Notice of Appeal itself had been filed out of time and no application had been made for enlargement of time to cure that defect. The fatal irregularity therefore went to the competence of the appeal itself. The court allowed the application to strike out with costs and, in consequence, struck out the appeal with costs. The ruling is a concise statement of the principle that enlargement of time for filing a record of appeal cannot cure an untimely Notice of Appeal where no extension has been sought for that foundational step. No authorities were cited and the bench was unanimous, delivering a single ruling of the court.

Key legal issues

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01

Effect of an out-of-time Notice of Appeal on the competence of an appeal

Holding

An appeal founded on a Notice of Appeal filed out of time is incompetent and must be struck out; enlargement of time for filing the record of appeal cannot cure the untimely Notice of Appeal.

Reasoning

The appellants' advocate conceded that the appeal was out of time, a concession the court accepted as correct. The court held that a second application for enlargement of time to file the record of appeal was of no assistance because the fatal defect lay in the Notice of Appeal itself, which was filed out of time, and no application had been made to enlarge time in respect of that step. The consequence was that the appeal was struck out with costs.

p. 1

Legal principles established

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  • Where the Notice of Appeal is filed out of time and no application for enlargement of time has been made to cure that defect, the appeal is incompetent and liable to be struck out under rule 80, and an application to enlarge time for filing the record of appeal cannot remedy the defect.

Court orders

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  1. 1.The respondent's application to strike out the appeal is granted with costs
  2. 2.The appeal is struck out with costs
On appeal from
High Court of Kenya at Kisumu
H.C.C. Appeal No. 6 of 1993
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (jurisdiction to strike out an appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rev. Peter A Indalo & 1 other v Fanana Investment Ltd", Case Analysis (1996). Civil Appeal No 30 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/108/eng@1996-03-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.