Aperit Investments S.a. Satishchandra Bhimji Shah v Suryakant Bhagwanji Raja Shah
The bottom line
#Kenya's Court of Appeal confirmed that a notice of appeal challenging an entire decision is valid, and delays caused by the court itself won't get appeals struck out.
What this practically means
#Executive summary
#Key legal issues
#Whether a notice of appeal is defective for failing to specify the part of the decision complained of where the intending appellant challenges the whole decision
The notice of appeal was valid. It expressed the respondent's desire to challenge the entire decision of the learned Judge, and the applicants could not choose for him the part of the decision to canvass on appeal
The applicants relied on the draft memorandum of appeal to argue that the intended appeal targeted only part of Kuloba J's ruling - the judgment sum of $31,646,306.28 - and not the dismissal of the security-for-costs application, so the notice's silence was fatal. The court rejected this: the draft memorandum is provisional and amendable, so it cannot be used to narrow the notice; the notice itself manifested dissatisfaction with the whole decision, and the choice of what to appeal rests with the intending appellant alone
What is the legal status and effect of a draft memorandum of appeal
A draft memorandum of appeal is provisional and not final; it may be amended before it is incorporated in the record of appeal and may not contain all the grounds of appeal that may be canvassed in the intended appeal
Because the draft memorandum may be amended at any time before the record of appeal is duly lodged, it cannot be treated as a definitive statement of the grounds to be pursued. It follows that an apparent mismatch between a draft memorandum and the notice of appeal cannot ground a striking-out application; the notice governs, and the grounds may be refined or expanded when the record of appeal is eventually lodged
Whether the respondent failed to take essential steps to institute the appeal
No essential step was omitted. The respondent applied without delay for the uncertified copies of the proceedings and the ruling, and the record of appeal had not been filed only because the superior court had not indicated that the proceedings were ready for collection
The applicants alleged laches and delaying tactics. The court found the respondent had no control over, and could not dictate to, the superior court regarding the typing of the proceedings; he could only wait for an indication that the documents were ready for collection. The delay was in part attributable to the applicants' own requests for mentions before Kuloba J. The respondent was also entitled to rely on rule 81 on computation of time
Whether the respondent could rely on rule 81 as regards computation of time
Yes. The respondent was entitled to rely on the provisions of rule 81 as regards computation of time
Since the record of appeal had not been filed through no fault of the respondent - the superior court had not communicated that the proceedings applied for on time were ready for collection - the respondent could invoke rule 81 on the computation of time. This reinforced the conclusion that no essential step had been omitted and that striking out the notice of appeal was unwarranted
Legal principles established
#- A draft memorandum of appeal is provisional and not final; it may be amended before it is incorporated in the record of appeal and need not contain all the grounds of appeal that may be canvassed in the intended appeal
- A notice of appeal that expresses the intending appellant's dissatisfaction with the entire decision is valid notwithstanding that an accompanying draft memorandum targets only part of it; no other party can choose for the appellant the part of the decision to appeal against
- An intending appellant who has timeously applied for copies of the proceedings does not fail to take an essential step merely because the record of appeal has not been filed while the superior court has not yet indicated that the proceedings are ready for collection
- An intending appellant is entitled to rely on rule 81 as regards computation of time
Court orders
#- 1.The application to strike out the notice of appeal is dismissed
- 2.The applicants to pay the costs of the application, the application having been dismissed with costs
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.A. No. 3906 of 1991
- Jurisdiction invoked
- Rules 42, 43, 74(3), 80 and 81 of the Rules of this Court, under which the application was expressed to be brought; no constitutional provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aperit Investments S.a. Satishchandra Bhimji Shah v Suryakant Bhagwanji Raja Shah", Case Analysis (2001). Civil Application No. NAI 121 of 2001 (69/2001 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/69/eng@2001-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.