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Court of AppealAllowedCivil Application No. Nai 268 of 2002

ROTHMAN'S HOLDINGS LIMITED NAUSHAD JIWA vs LADAK ALIAS AMIN JAFFER GULAMHUSEIN [2003] KECA 106 (KLR)

Court of Appeal
23 January 2003
191 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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Filing a notice of appeal is not enough in Kenya; you must also institute the appeal on time, or lose it and related court orders.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Mombasa (Gicheru, Tunoi and Lakha, JJ.A.) delivered on 23rd January 2003 in Civil Application No. Nai 268 of 2002. The applicants, Rothman's Holdings Limited and Naushad Jiwa, sought to strike out a notice of appeal filed by the respondent, Amin Ladak alias Amin Jaffer Gulamhusein, on 22nd January 2001 in respect of a ruling of the High Court at Mombasa (Waki J). The applicants' complaint was that although the respondent had filed the notice of appeal, he had failed to institute the appeal within the prescribed time, or at all. The court agreed. It struck out the notice of appeal, and as a consequential order set aside the order of the superior court made on 27th July 2001, directing that the monies held in a joint account be released to the applicants. The applicants were awarded the costs of the application. The ruling is a single judgment of the whole court with no separate opinions or dissents, and it cites no authorities and no statutory provisions. Its practical significance lies in confirming that a notice of appeal is not self-executing: a party who files one must prosecute the appeal within the prescribed period, failing which the notice is struck out and interim arrangements founded on the pending appeal - here, monies parked in a joint account - are unwound. The copy supplied is certified by the Deputy Registrar and contains some textual corruption in the operative paragraph.

Questions the Court framed

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

  1. 1.Whether the respondent's notice of appeal should be struck out for failure to institute an appeal within the prescribed time or at all
  2. 2.What consequences flow from striking out the notice of appeal, including the fate of the superior court's order of 27-7-01 and the monies held in the joint account

Key legal issues

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01

Consequence of failure to institute an appeal after filing a notice of appeal

Holding

Where a party files a notice of appeal but fails to institute the appeal within the prescribed time or at all, the notice of appeal will be struck out and any interim order of the superior court premised on the pending appeal will be set aside.

Reasoning

The Court of Appeal treated the respondent's inaction after filing the notice of appeal as rendering the notice ineffective. Having struck out the notice, the foundation for the superior court's order of 27-7-01 disappeared, so that order was set aside and the monies held in the joint account were released to the applicants, with costs of the application to the applicants.

p. 2

Legal principles established

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  • A notice of appeal that is not followed by institution of an appeal within the prescribed time, or at all, is liable to be struck out, and orders granted pendente lite on its footing fall to be set aside.

Court orders

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  1. 1.The respondent's notice of appeal filed on 22-1-01 is struck out
  2. 2.The order of the superior court made on 27-7-01 is set aside
  3. 3.The monies in the joint account be released to the applicants
  4. 4.Applicants to have the costs of the application

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.S. No. 458 of 2000
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal over notices of appeal and consequences of failure to institute an appeal within the prescribed time

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.

As the respondent has failed to institute an appeal within the prescribed time or at all after the filing of the Notice of Appeal, such notice filed on 22-1-01 is hereby strucIkt ofuto.llows that the order of the superior court made on 27-7-01 is set aside and the monies in the joint account be released to the applicants.
p. 2Striking out a notice of appeal for failure to institute the appeal and consequent setting aside of the superior court's order
Applicants to have the costs of the application.
p. 2Final orders - costs

Issues in the judgment

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minor

The text of the ruling is corrupted where the striking-out order and its consequence merge; the phrase appears to be an OCR merging of 'struck out. It follows' but cannot be verified from the document supplied.

minor

The respondent is listed twice in the heading of the same cause, and the ruling recites the superior court order as made on 27-7-01 while the struck-out notice was filed on 22-1-01; the underlying High Court ruling is described as dated 9th January, 2001, leaving the sequence of dates unexplained on the face of the document.

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, "ROTHMAN'S HOLDINGS LIMITED NAUSHAD JIWA vs LADAK ALIAS AMIN JAFFER GULAMHUSEIN [2003] KECA 106 (KLR)", Case Analysis (2003). Civil Application No. Nai 268 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/106/eng@2003-01-23

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