Diamond Trust of (K) Ltd v Peter Odero Oor & another [1996] KECA 185 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a Notice of Appeal because it wasn't served on the other side within seven days of filing.
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 Notice of Appeal filed on 31st January, 1996 was served on the Respondent within 7 days of filing as required by Rule 76 of the Court of Appeal Rules
- 2.Whether failure to serve the Notice of Appeal within the prescribed time warrants striking it out
Key legal issues
#Non-service of Notice of Appeal within 7 days under Rule 76
The Notice of Appeal was struck out for breach of the mandatory service requirement of Rule 76.
The application to strike out was supported by affidavit deponing that the Notice of Appeal was never served on the Respondent within 7 days of filing. There was no affidavit in reply or opposition, so the allegation stood uncontroverted. The court found a breach of the mandatory provision, Rule 76, and struck out the Notice of Appeal.
Legal principles established
#- Failure to serve a Notice of Appeal on the Respondent within 7 days of filing, in breach of Rule 76 of the Court of Appeal Rules, is a breach of a mandatory provision justifying striking out the Notice of Appeal.
Court orders
#- 1.The Notice of Appeal filed on 31st January, 1996 is struck out
- 2.No order as to costs, the parties having been wrongly described
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Rule 76 of the Court of Appeal Rules (inherent/appellate jurisdiction to strike out a non-compliant Notice of Appeal)
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.
There is a breach of mandatory provision being Rule 76 of the Rules of this Court. Accordingly, the Notice of Appeal filed on 31st January, 1996 is hereby struck out.
The parties to this application were wrongly described and in the circumstances there will be no order as to costs.
Issues in the judgment
#The ruling does not state the names of the parties or the case number; parties are described only as applicant and respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Diamond Trust of (K) Ltd v Peter Odero Oor & another [1996] KECA 185 (KLR)", Case Analysis (1996). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/185/eng@1996-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.