Trimborn Agricultural Engineering Limited V David Njoroge Kabaiko & Another [2000] KECA 28 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because a defective Notice of Appeal was never properly withdrawn before a fresh one was filed.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 contained in the record of appeal was filed out of time and therefore invalid
- 2.Whether the record of appeal, lacking the original Notice of Appeal filed on 25th June 1996, is defective
- 3.Whether the appeal should be struck out
Key legal issues
#Validity of the second Notice of Appeal filed pursuant to an extension of time granted by the High Court
The second Notice of Appeal was null and void because the original Notice of Appeal of 25th June 1996 was still in existence, never having been struck out or withdrawn.
The original Notice of Appeal, though alleged defective, was never struck out under rule 80 nor deemed withdrawn under rule 82. It therefore remained a subsisting, valid primary document. The respondent could not act as though it did not exist, so the High Court proceedings extending time for a fresh Notice were futile and their product a nullity.
Defectiveness of the record of appeal
The record of appeal was defective because it did not contain the original Notice of Appeal filed on 25th June 1996, which was a primary document under rule 85(1)(j), rendering the appeal itself defective.
Since the original Notice of Appeal remained valid and was a primary document, it had to be included in the record of appeal. Its absence, coupled with the nullity of the Notice actually contained in the record, made the record defective and the appeal liable to be struck out.
Whether the Notice of Appeal was filed out of time
The applicant could not complain that the Notice of Appeal was out of time because it was filed within the extension period granted by the High Court, and the applicant never appealed against that order.
The High Court, exercising jurisdiction under section 7 of the Appellate Jurisdiction Act, granted fourteen days to file and seven days to serve the Notice of Appeal. The Notice was filed within eleven days of that order. The applicant did not appeal against that order and so could not be heard to argue the Notice was out of time.
Legal principles established
#- A party cannot file a fresh Notice of Appeal while the original one subsists; the original must first be struck out or deemed withdrawn under rule 82, and any extension-of-time order obtained without doing so is a nullity.
- A Notice of Appeal not struck out under rule 80 or deemed withdrawn under rule 82 remains a valid primary document that must be included in the record of appeal.
Court orders
#- 1.The Notice of Motion dated and filed on 21st February 2000 is granted and the appeal is struck out with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nakuru
- H.C.C.C No. 395 of 1992
- Jurisdiction invoked
- Rules 9, 42 and 80 of the Court of Appeal Rules (application to strike out an 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.
file a fresh Notice of Appeal until the original one has ceased to exist. To clear the deck for an application for extension of time to file a fresh Notice of Appeal, the original Notice of Appeal must either be struck out or deemed to have being withdrawn under rule 82 of the Rules.
In the result, I would grant the motion and strike out the appeal with costs.
The record of appeal is therefore defective hence rendering the appeal itself defective.
Issues in the judgment
#The judgment is a ruling by a single Judge of Appeal (Owuor JA) and is expressed in the first person singular ('I would grant the motion'), yet the heading styles it 'RULING OF OWUOR. J.A' without indicating a full coram; the decision-making structure of the court is not fully disclosed.
The judgment is dated and delivered at Nairobi although the court is stated to be at Nakuru.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Trimborn Agricultural Engineering Limited V David Njoroge Kabaiko & Another [2000] KECA 28 (KLR)", Case Analysis (2000). Civil Appeal 274 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/28/eng@2000-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.