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Court of AppealStruck OutCivil Appeal No. 293 of 1997

ELEGANT SERVICE STATION & GARAGE LIMITED vs KOBIL PETROLEUM LIMITED & ANOTHER [1998] KECA 228 (KLR)

Court of Appeal of Kenya
19 May 1998
224 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out a late appeal filed without extension of time and an incomplete record, confirming both omissions are fatal to appeals.

What this practically means

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Executive summary

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This short ruling of the Court of Appeal at Nairobi (Akiwumi, Tunoi and Lakha, JJ.A.) disposed of an application to strike out Civil Appeal No. 293 of 1997, an appeal by Elegant Service Station & Garage Limited against Kobil Petroleum Limited and Excelathon Limited from a judgment of the High Court (Khamoni, J.) dated 14th July 1997 in H.C.C.C. No. 1501 of 1989. The court gave two independent grounds for striking out the appeal. First, under the certificate of delay, copies of the proceedings were ready on 7th October 1997, yet the appeal was not filed until 19th December 1997, well out of the prescribed time, and there was no leave for any extension of time. Second, the record did not contain all the exhibits produced at the trial, which the court held to be a breach of the mandatory provisions of Rule 85(1)(h) of the Court of Appeal Rules - an incurable and fatal omission rendering the appeal incompetent. The court therefore struck out the appeal with costs, including the costs of the striking-out application. The ruling binds lower courts to treat late filing without extension of time, and an incomplete record lacking trial exhibits, as fatal to the competence of an appeal. No authorities were cited and the decision was unanimous.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal should be struck out for having been filed out of time without leave for extension
  2. 2.Whether the incomplete record, lacking all trial exhibits, breached Rule 85(1)(h) and rendered the appeal incompetent

Key legal issues

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01

Late filing of appeal without extension of time

Holding

The appeal, filed on 19th December 1997 although proceedings were ready on 7th October 1997, was out of time and no leave for extension had been sought or granted, making it incompetent.

Reasoning

The certificate of delay showed proceedings were ready on 7th October 1997, yet the appeal was not filed until 19th December 1997, well beyond the prescribed period. The court noted there was no leave for any extension of time, so the appeal was properly before it for striking out under Rule 80 of the Court of Appeal Rules.

p. 1
02

Incomplete record of appeal under Rule 85(1)(h)

Holding

The omission of exhibits produced at the trial from the record is a breach of the mandatory Rule 85(1)(h) and is incurable and fatal, rendering the appeal incompetent.

Reasoning

The record did not contain all the exhibits produced at the trial. The court treated Rule 85(1)(h) as mandatory, and held that its breach was not a curable irregularity but a fatal omission going to the competence of the appeal, independently justifying striking out under Rule 80.

p. 1

Legal principles established

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  • An appeal filed out of the prescribed time, without leave for extension of time, is incompetent and liable to be struck out under Rule 80.
  • Failure to include all exhibits produced at the trial in the record breaches the mandatory provisions of Rule 85(1)(h) and is an incurable and fatal omission rendering the appeal incompetent.

Court orders

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  1. 1.The appeal is struck out
  2. 2.Costs of the appeal and of the application awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1501 of 1989
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Rules of this Court (Rule 80 and Rule 85(1)(h))

Relief refused

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Leave to proceed with the appeal / extension of time

The appeal was filed well out of the prescribed time and no leave for extension of time had been obtained

p. 1

Costs

Appeal struck out with costs including the costs of the application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Under the certificate of delay the copies of the proceedings were ready on 7th October, 1997 but the appeal was not filed until 19th December, 1997 well out of the prescribed time. There is no leave for any extension of time.
p. 1Late filing without extension of time
This is in breach of the mandatory provisions of Rule 85(1)(h) of the Rules and this is an incurable and fatal omission rendering the appeal incompetent.
p. 1Mandatory completeness of the record of appeal
Accordingly, the appeal is struck out with costs including the costs of the application.
p. 1Final orders - striking out and costs

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, "ELEGANT SERVICE STATION & GARAGE LIMITED vs KOBIL PETROLEUM LIMITED & ANOTHER [1998] KECA 228 (KLR)", Case Analysis (1998). Civil Appeal No. 293 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/228/eng@1998-05-19

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