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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No 274 of 1998

Trimborn Agricultural Engineering Limited v David Njoroge Kabaiko & Kenya Shield Security Limited

Court of Appeal of Kenya
17 March 2000
4,628 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out an appeal because a defective notice of appeal was never properly replaced before a fresh one was filed.

What this practically means

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Executive summary

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Kenya Shield Security Limited, second respondent, moved under rules 9, 42 and 80 of the Court of Appeal Rules to strike out Trimborn Agricultural Engineering Limited's appeal on the grounds that the notice of appeal was filed 531 days out of time, the record was incomplete, and essential steps had not been taken in time. The appeal lay from Ondeyo J's judgment of 20th June 1996 in Nakuru HCCC No 395 of 1992. The appellant had lodged a timely notice of appeal on 25th June 1996, but it omitted the names of two third parties. Without striking out or withdrawing that notice, the appellant obtained from the High Court, under section 7 of the Appellate Jurisdiction Act, an extension of time and lodged a fresh notice on 16th December 1997. All three judges agreed the appeal must be struck out. The majority (Gicheru and Shah JJA) held that a notice of appeal is a primary document which cannot be amended; while it subsists, the High Court has no jurisdiction to extend time for a fresh notice, so the extension and the second notice were null and void; and the record of appeal was fatally defective for omitting the original notice. Shah JA additionally struck out the first notice itself. Owuor JA agreed the appeal should be struck out but would have awarded costs. The majority made no order as to costs, crediting the candour of the appellant's counsel. The ruling binds the High Court on the limits of its section 7 jurisdiction where a notice of appeal is already on record.

Questions the Court framed

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

  1. 1.Whether the notice of appeal in the record of appeal was filed out of time
  2. 2.Whether the High Court had jurisdiction to extend time for lodging a fresh notice of appeal while the original notice of appeal remained on record
  3. 3.Whether the record of appeal, lacking the original notice of appeal, was defective and the appeal incompetent

Key legal issues

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01

Jurisdiction of the High Court to extend time for a fresh notice of appeal

Holding

The High Court acted without jurisdiction because the original notice of appeal, though defective, was still subsisting and had not been struck out or deemed withdrawn.

Reasoning

Section 7 of the Appellate Jurisdiction Act is available only the first time an intending appellant manifests an intention to appeal and before any steps are taken. Once a valid notice of appeal is lodged, the matter leaves the superior court's domain. The original notice here was never struck out under rule 80 or deemed withdrawn under rule 82, so the extension of time and the second notice were null and void.

p. 8
02

Completeness of the record of appeal

Holding

The record was fatally defective because it contained only the second, null notice of appeal and omitted the original notice of appeal, a primary document.

Reasoning

The original notice of appeal lodged on 25th June 1996 was a primary document which had to be included in the record under rule 85(1)(j). Its absence rendered the record incomplete and the appeal incompetent, independently of the invalidity of the second notice.

p. 8
03

Defects in the original notice of appeal

Holding

The original notice was incompetent for omitting the names of the first and second third parties, one of whom was also apparently not served.

Reasoning

All parties directly affected by the judgment must be included in and served with a properly headed notice of appeal; an intending appellant who does not wish to serve a party must apply for directions under rule 76(1). The omission of the two third parties made the first notice invalid.

p. 7

Legal principles established

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  • A notice of appeal is a primary document which gives the Court of Appeal jurisdiction and cannot be amended.
  • A party cannot file a fresh notice of appeal until the original notice has been struck out or deemed withdrawn under rule 82.
  • While a subsisting notice of appeal remains on record, the High Court has no jurisdiction under section 7 of the Appellate Jurisdiction Act to extend time to lodge a fresh notice of appeal.
  • Only a full bench of the Court of Appeal may order that a notice of appeal be deemed withdrawn under rule 82.

Court orders

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  1. 1.Civil Appeal No 274 of 1998 struck out
  2. 2.The first notice of appeal lodged on 25th June 1996 struck out (per Shah JA)
  3. 3.No order as to costs (majority)

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

OW
partial dissent

Wrote the judgment

Agreed the appeal should be struck out because the record omitted the original notice of appeal and the second notice was a nullity, but would have awarded costs to the applicant.

In the result, I would grant the motion and strike out the appeal with costs.p. 3
SH
majority

Wrote the judgment

Held the High Court lacked jurisdiction to extend time for a fresh notice of appeal while the original notice remained on record unstruck; would strike out the appeal and the first notice, with no order as to costs.

So long as that notice of appeal remains, the High Court has no jurisdiction to extend time to lodge a fresh notice of appeal.p. 6
majority

Wrote the judgment

Held the subsisting original notice of appeal rendered the High Court's extension of time and the second notice null and void, and the record incomplete; would strike out the appeal with no order as to costs given counsel's candour.

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. 8
On appeal from
High Court of Kenya at Nakuru
HCCC No 395 of 1992
Jurisdiction invoked
Rules 9, 42 and 80 of the Court of Appeal Rules (application to strike out an appeal)

Relief refused

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Costs of the application to the applicant (second respondent)

Majority declined costs in view of the candour of counsel for the appellant

p. 8

Costs

No order as to costs (majority of Gicheru and Shah JJA); Owuor JA would have ordered the appeal struck out with costs.

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.

It has been held time and again that a notice of appeal is a primary document. It gives jurisdiction to this Court.
p. 5Status of a notice of appeal
So long as that notice of appeal remains, the High Court has no jurisdiction to extend time to lodge a fresh notice of appeal.
p. 6High Court jurisdiction under section 7
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.
p. 3Prerequisite to filing a fresh notice of appeal
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
p. 8Disposition of the application

Issues in the judgment

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minor

Conflicting dates for the High Court 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, "Trimborn Agricultural Engineering Limited v David Njoroge Kabaiko & Kenya Shield Security Limited", Case Analysis (2000). Civil Appeal No 274 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/419/eng@2000-03-17

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