Trimborn Agricultural Engineering Limited V David Njoroge Kabaiko & Another [2000] KECA 6 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because a defective notice of appeal was never properly removed before a fresh one was filed.
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 16th December 1997 was filed out of time such that no valid notice of appeal exists in the record
- 2.Whether the High Court had jurisdiction under section 7 of the Appellate Jurisdiction Act to extend time for lodging a fresh notice of appeal while the original notice of appeal remained on record
- 3.Whether the record of appeal was incomplete and defective for omitting the original notice of appeal as a primary document
- 4.Whether the appeal should be struck out and on what terms as to costs
Key legal issues
#Jurisdiction of the High Court under section 7 of the Appellate Jurisdiction Act to extend time for a fresh notice of appeal
The High Court had no jurisdiction to extend time for lodging a fresh notice of appeal because the original notice of appeal, though defective, was still subsisting and had not been struck out or deemed withdrawn.
Section 7 of the Appellate Jurisdiction Act is available only the first time an intending appellant manifests an intention to appeal, before any steps in pursuance of the appeal have been taken. Once a valid notice of appeal is filed, the matter is removed from the superior court's jurisdiction except for limited matters. The jurisdiction to restart appellate procedures lies with the Court of Appeal under rule 4, not with the High Court under section 7. The extension order was therefore null and void.
Status of a defective notice of appeal as a primary document
A defective notice of appeal remains a valid, subsisting primary document until struck out under rule 80 or deemed withdrawn under rule 82, and must be included in the record of appeal.
A notice of appeal is a primary document that gives the Court of Appeal jurisdiction and cannot be amended. The appellant's first notice omitted the names of the two third parties, but it was never struck out or deemed withdrawn. Because it subsisted, the second notice of appeal lodged after the High Court's extension was a nullity, and the record of appeal, which contained only the second notice, was incomplete and fatally defective, rendering the appeal incompetent.
Non-inclusion and non-service of affected parties in the notice of appeal
The first notice of appeal was incompetent for omitting the names of the first and second third parties, who were directly affected by the judgment, and the second third party was not served with the notice.
The judgment of the superior court failed to set out all parties' names, which the courts below should guard against, but the duty lies on the intended appellant to serve a properly headed notice on all affected parties. An intending appellant who does not wish to serve a party must apply within seven days for a direction under rule 76(1); it is not for the appellant to decide unilaterally not to serve.
Legal principles established
#- A notice of appeal is a primary document which gives the Court of Appeal jurisdiction and cannot be amended.
- While an original notice of appeal remains on record and has not been struck out or deemed withdrawn, the High Court has no jurisdiction under section 7 of the Appellate Jurisdiction Act to extend time to lodge a fresh notice of appeal.
- A notice of appeal can only be deemed withdrawn under rule 82 by order of a full bench of the Court of Appeal on an application under rule 80; a single judge, and a fortiori a High Court judge, cannot do so.
- A party cannot file a fresh notice of appeal until the original one has ceased to exist; the original must first be struck out or deemed withdrawn under rule 82.
- It is the duty of the intended appellant to ensure that all parties directly affected by the judgment are served with a properly headed notice of appeal including their names.
Court orders
#- 1.Civil Appeal No. 274 of 1998 struck out
- 2.The first notice of appeal struck out as admittedly defective
- 3.No order as to costs (majority decision)
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Held that a notice of appeal is a primary document which cannot be amended; because the original notice of appeal of 25th June 1996 was still in existence, the High Court's extension of time and the lodging of a fresh notice of appeal were null and void. The record of appeal, lacking the original notice of appeal, was fatally defective and the appeal incompetent. Would strike out the appeal with no order as to costs in view of counsel's candidness.
Consequently, the appellant's record of appeal is fatally defective rendering its appeal incompetent. I would therefore strike out the said appeal but with no order as to costsp. 12
Wrote the judgment
Held that the first notice of appeal, though defective, remained on record until struck out by the Court of Appeal, so the High Court had no jurisdiction under section 7 of the Appellate Jurisdiction Act to extend time to lodge a fresh notice of appeal. The first notice was also incompetent for non-inclusion of the two third parties. Would strike out the appeal and the first notice of appeal, with no order as to costs.
I would therefore strike out Civil Appeal No. 274 of 1998 not on the grounds advanced by Mr. Kagucia but on the grounds already propounded by me. I would also strike out the first notice of appeal as it is admittedly defective. I would make no order as to costs.p. 9
Wrote the judgment
Agreed the appeal should be struck out because the record omitted the original notice of appeal as a primary document, but would have awarded costs to the applicant, differing from the majority's no-costs position.
In the result, I would grant the motion and strike out the appeal with costs.p. 3
- On appeal from
- High Court of Kenya at Nakuru
- H.C.C.C. No. 395 of 1992
- Jurisdiction invoked
- Court of Appeal Rules, rules 9, 42 and 80 (application within a pending appeal); Appellate Jurisdiction Act, Chapter 5, section 7
Relief refused
#Costs of the application sought by the second respondent (Kenya Shield Security Limited)
The majority declined costs in view of the candidness of counsel for the appellant, Mr. Maraga, who disclosed the existence of the defective original notice of appeal
Costs
No order as to costs (majority of Shah and Gicheru, JJ.A); Owuor, J.A. dissented and would have struck out the appeal with costs.
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.
I would therefore strike out Civil Appeal No. 274 of 1998 not on the grounds advanced by Mr. Kagucia but on the grounds already propounded by me. I would also strike out the first notice of appeal as it is admittedly defective. I would make no order as to costs.
Consequently, the appellant's record of appeal is fatally defective rendering its appeal incompetent. I would therefore strike out the said appeal but with no order as to costs
It has been held time and again that a notice of appeal is a primary document. It gives jurisdiction to this Court.
So long as that notice of appeal remains, the High Court has no jurisdiction to extend time to lodge a fresh notice of appeal.
such order can only be validly made by a full bench in an application brought under rule 80 of the Court of Appeal Rules.
In the result, I would grant the motion and strike out the appeal with costs.
Issues in the judgment
#The coram heading before Shah, J.A.'s ruling states the High Court judgment was 'dated 20th June, 1999' while all other references in the judgment, including the other coram headings and the rulings themselves, state the judgment was delivered on 20th June, 1996.
The second respondent's name is printed as 'KENYA SHIELD SECURITY LIMITE' (truncated) in the coram heading before Gicheru, J.A.'s ruling, and the third party's name appears variously as 'Stephen Kiraigo' and 'Stephen Kariago' in Shah, J.A.'s ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- A.H. LALJI vs B.H. LALJI & 3 OTHERS [2000] KECA 231 (KLR)[2000] KECA 231 (KLR)7 Apr 2000followed
- A.H. LALJI vs B.H. LALJI & 3 OTHERS [2000] KECA 291 (KLR)[2000] KECA 291 (KLR)7 Apr 2000followed
Cite this brief
#Cite this brief
Caselaw, "Trimborn Agricultural Engineering Limited V David Njoroge Kabaiko & Another [2000] KECA 6 (KLR)", Case Analysis (2000). Civil Appeal (Application) No. 274 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/6/eng@2000-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.