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Court of AppealStruck OutCivil Appeal No. 228 of 1999· [1999] KECA 133 (KLR)

JACARANDA HOTEL LIMITED vs WILDLIFE LODGES LIMITED [1999] KECA 133 (KLR)

Court of Appeal
1 December 1999
ROR. S. C. OmoloPhilip Kiptoo TunoiP. K. TunoiEOE. Owuor
186 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a wrongly dated Notice of Appeal cannot be fixed — the entire appeal collapses.

What this practically means

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Executive summary

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This short Court of Appeal decision at Nairobi, delivered on 1st December 1999 by a bench of Omolo, Tunoi and Owuor, JJ.A., concerned Civil Appeal No. 228 of 1999, an appeal by Jacaranda Hotel Limited against a ruling and decree of the High Court (Oguk, J.) dated 28th October 1999 in H.C.C.C. No. 839 of 1999. Counsel for the appellant drew the court's attention to the fact that the Notice of Appeal was wrongly dated. He conceded that, as a primary document, a Notice of Appeal is not capable of amendment, and that its invalidity rendered the appeal incompetent. The court agreed, held the appeal fatally defective, and ordered it struck out, making no order as to costs. The court further held that the earlier order consolidating this appeal with Civil Appeal No. 242 of 1999 could not stand once the appeal was struck out; that consolidation order was vacated, and C.A. No. 242/99 was directed to be heard separately. The judgment is a single order of the whole court with no separate opinions and no authorities cited. Its binding significance lies in the confirmation that a wrongly dated Notice of Appeal is a fatal, unamendable defect that renders an appeal incompetent.

Key legal issues

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Whether an appeal based on a wrongly dated Notice of Appeal can stand

Holding

The appeal is incompetent and fatally defective because the Notice of Appeal, a primary document, is wrongly dated and cannot be amended; the appeal is struck out.

Reasoning

Counsel for the appellant himself brought the defect to the court's attention and conceded that a Notice of Appeal is a primary document incapable of amendment. The court agreed that the invalidity of the primary document renders the appeal incompetent. Having struck out the appeal, the court also vacated the earlier consolidation order so that the companion appeal, C.A. No. 242/99, proceeds separately.

p. 2

Legal principles established

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  • A Notice of Appeal is a primary document which is not capable of amendment; a wrongly dated Notice of Appeal is invalid and renders the appeal incompetent and fatally defective.

Court orders

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  1. 1.The appeal is fatally defective and is ordered struck out
  2. 2.No order as to costs
  3. 3.The earlier order for consolidation is vacated
  4. 4.Civil Appeal No. 242 of 1999 shall be heard separately
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 839 of 1999
Jurisdiction invoked
Appeal to the Court of Appeal under the Constitution of Kenya and the Appellate Jurisdiction Act (not expressly stated in the judgment)

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, "JACARANDA HOTEL LIMITED vs WILDLIFE LODGES LIMITED [1999] KECA 133 (KLR)", Case Analysis (1999). Civil Appeal No. 228 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/133/eng@1999-12-01

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