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Court of AppealAllowedCivil Application No. NAI.174 of 2002

Esther Nyaguthi Kinyua & another (suing as administrators of Daniel M. Gichohi (Deceased) v Kenya Bus Services Ltd [2002] KECA 142 (KLR)

Court of Appeal
28 November 2002
SBS.E.O. BosireEOE. OwuorMKM. Keiwua
210 words in judgment
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·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out Kenya Bus Services' defective appeal notice, letting the High Court judgment in favour of the deceased's estate stand.

What this practically means

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Executive summary

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This brief analyses a short ruling of the Court of Appeal at Nairobi delivered on 28 November 2002 by Bosire, Owuor and Keiwua JJ.A, sitting as a full bench of three. The matter, Civil Application No. NAI.174 of 2002, was brought by Esther Nyaguthi Kinyua and Charles N. Gichohi, suing as administrators of the estate of Daniel M. Gichohi (deceased), under rule 80 of the Court of Appeal Rules. They sought to strike out a notice of appeal lodged in court on 18 March 2002 by Mereka and Company Advocates in High Court Civil Case No. 723 of 2000. The notice had been lodged in an intended appeal against a judgment of the High Court of Kenya at Nairobi (Ang'awa J) dated 7 February 2002. The applicants were the parties against whom that appeal was intended; Kenya Bus Services Ltd, named as respondent to the application, was the intended appellant. The ruling is marked by its brevity and by the basis of its disposal: counsel for Kenya Bus Services Ltd, Mr. Mutua, conceded that the notice of appeal was incurably defective. Faced with that concession, the court held that the only order that commended itself was to strike the notice out. It did so with costs to the applicants, assessed by the court itself at Kshs. 500. The ruling contains no extended reasoning, no citation of authority and no separate opinions; it is a single ruling of the whole court. Its practical effect was terminal for the intended appeal: the High Court judgment of 7 February 2002 stands undisturbed.

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 lodged in court on 18th March 2002 by Mereka and Company Advocates in High Court Civil Case No. 723 of 2000 ought to be struck out as incurably defective.

Key legal issues

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01

Whether the notice of appeal lodged on 18th March 2002 in H.C.C.C. No. 723 of 2000 should be struck out under rule 80 of the Court of Appeal Rules.

Holding

Yes. The notice of appeal was struck out, the respondent having conceded through its counsel that it was incurably defective. Costs were awarded to the applicants and were assessed by the court itself at Kshs. 500.

Reasoning

The court disposed of the application on concession rather than contested argument. Counsel for Kenya Bus Services Ltd, Mr. Mutua, conceded that the notice of appeal lodged on 18th March 2002 was incurably defective. Faced with that concession, the court saw no order other than striking out the notice as one that commended itself. It struck the notice out and, notably, itself assessed the costs payable to the applicants at Kshs. 500. The ruling assigns no reasons beyond the concession and cites no authority; its ratio is confined to the summary disposal of an undefended rule 80 application.

p. 2

Legal principles established

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  • A notice of appeal that is incurably defective will be struck out by the Court of Appeal; in this ruling the court so ordered on the respondent's concession, with costs to the applicant.

Court orders

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  1. 1.The Notice of Appeal lodged in court on 18th March 2002 by Mereka and Company Advocates in High Court Civil Case No. 723 of 2000 is struck out.
  2. 2.Costs of the application awarded to the applicants, assessed by the Court at Kshs. 500.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SB
majority
EO
majority
MK
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 723 of 2000
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules ('the Rules of this Court') - the Court of Appeal's power to strike out a notice of appeal

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.

the order that commends itself to us is to order that the notice be and is hereby struck out with costs to the applicant assessed at Kshs.500/=
p. 2Final orders - striking out the notice of appeal with costs assessed at Kshs. 500
As Mr. Mutua for the respondent concedes that the said notice of appeal is incurably defective
p. 2Concession by respondent's counsel that the notice of appeal is incurably defective
This is an application under rule 80 of the Rules of this Court seeking an order that the Notice of Appeal lodged in court on 18th March 2002 by Mereka and Company Advocates, in High Court Civil Case No.723 of 2000 be struck out.
p. 2Nature of the application under rule 80 of the Court of Appeal Rules

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, "Esther Nyaguthi Kinyua & another (suing as administrators of Daniel M. Gichohi (Deceased) v Kenya Bus Services Ltd [2002] KECA 142 (KLR)", Case Analysis (2002). Civil Application No. NAI.174 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/142/eng@2002-11-28

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