ROTHMAN'S HOLDINGS LIMITED NAUSHAD JIWA vs LADAK ALIAS AMIN JAFFER GULAMHUSEIN [2003] KECA 106 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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
#Consequence of failure to institute an appeal after filing a notice of appeal
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.
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.
Legal principles established
#- 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
#- 1.The respondent's notice of appeal filed on 22-1-01 is struck out
- 2.The order of the superior court made on 27-7-01 is set aside
- 3.The monies in the joint account be released to the applicants
- 4.Applicants to have the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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.
Applicants to have the costs of the application.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.