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Court of AppealStruck OutCivil Appeal No. 103 of 1999

Samken Limited & another v Mercedes Sanchez Rau Tussel & another [1999] KECA 77 (KLR)

Court of Appeal
1 October 1999
ROR. S. C. OmoloALA. A. LakhaSBS. E. O. Bosire
171 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out an appeal filed too late without permission, meaning missed appeal deadlines can end your case entirely.

What this practically means

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Executive summary

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This was a very short ruling of the Court of Appeal at Nairobi delivered on 1st October 1999 by a bench of Omolo, Lakha and Bosire, JJ.A. The appeal by Samken Limited and Abercrombie Kent Ltd against Mercedes Sanchez Rau Tussel and Mohammed Osman Maalim arose from a judgment and decree of the High Court of Kenya at Nairobi (Ringera J) dated 27th November 1997 in H.C.C.C. No. 4231 of 1992, consolidated with H.C.C.C. Nos. 4232, 4233 and 4234 of 1992. The court recorded that the appellants had failed to obtain an extension of time to file their appeal out of time. It followed, in the court's view, that the appeal had been filed out of time and without leave, and was therefore incompetent. The court struck out the appeal and awarded the costs of the appeal to the respondents. The judgment contains no separate opinions, no dissent, no citation of authorities or statutory provisions, and no discussion of the merits of the underlying High Court dispute; the High Court judgment was neither affirmed nor reversed, as the appeal never proceeded to a hearing on the merits. The binding proposition for lower courts and litigants is that an appeal filed out of time and without leave or an extension of time is incompetent and liable to be struck out with costs.

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, filed out of time and without an extension of time or leave, was competent before the Court of Appeal.

Key legal issues

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01

Competence of an appeal filed out of time without leave

Holding

The appeal was incompetent because the appellants had not obtained an extension of time, and it was struck out with costs to the respondents.

Reasoning

The court reasoned that since the appellants had failed to obtain an extension of time to file their appeal out of time, the appeal as filed was out of time and without leave. An appeal filed in that state does not properly invoke the jurisdiction of the Court of Appeal and is therefore incompetent. The only appropriate order was to strike it out, with costs following the event to the respondents.

p. 1

Legal principles established

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  • An appeal filed out of time and without leave or an extension of time is incompetent and liable to be struck out.

Court orders

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  1. 1.The appeal was struck out as incompetent.
  2. 2.Costs of the appeal were awarded to the respondents.

The bench

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

RO
majority

Wrote the judgment

AL
majority

Wrote the judgment

SB
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 4231 of 1992 (Consolidated with H.C.C.C. Nos. 4232, 4233 and 4234 of 1992)
Jurisdiction invoked
Not stated in the judgment; the appeal was before the Court of Appeal but was found to have been filed out of time and without leave.

Relief refused

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The appellants' attempt to prosecute the appeal filed out of time

The appellants never obtained an extension of time within which to file the appeal, so the appeal was incompetent.

p. 1

Costs

Costs of the appeal awarded to the respondents.

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.

The appellants failed to obtain an extension of time to file their appeal out of time. That means that this appeal was filed out of time and without leave.
p. 1Failure to obtain extension of time
It is, accordingly, incompetent and we order that it be and is hereby struck out with the costs thereof to the respondents.
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, "Samken Limited & another v Mercedes Sanchez Rau Tussel & another [1999] KECA 77 (KLR)", Case Analysis (1999). Civil Appeal No. 103 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/77/eng@1999-10-01

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