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Court of AppealAllowedCivil Application No. Nai. 350 of 2002

ROBLEY MUKTAR LUCUQH,ZAMZAM OMAR vs KIMEMIA WANJOHI,COASTLINE SAFARIS LIMITED [2003] KECA 137 (KLR)

Court of Appeal
23 January 2003
JGJ.E GicheruPhilip Kiptoo TunoiP.K TunoiALA.A Lakha
196 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out an appeal filed over a month late, confirming that a late appeal notice is invalid without permission.

What this practically means

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Executive summary

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This was an interlocutory application in the Court of Appeal at Mombasa (Gicheru, Tunoi and Lakha, JJ.A) by Kimemia Wanjohi and Coastline Safaris Limited seeking to strike out a Notice of Appeal dated 21st September 2001 lodged by Robley Muktar Lucuqh and Zamzam Omar, who intended to appeal against the judgment of the High Court of Kenya at Mombasa (Waki, J) in H.C.C.C No. 99 of 1997 delivered on 4th September 2001. The court allowed the application as prayed. It held that the judgment appealed from was delivered on 4th September 2001 but the Notice of Appeal was only lodged on 9th October 2001, well outside the period prescribed by the Rules of the Court; a Notice of Appeal so lodged out of time without the necessary extension is invalid. The court struck out the Notice of Appeal with costs to the applicants. No authorities were cited and the ruling is a short single judgment of the whole court. The decision binds subordinate courts and parties: an appeal founded on a Notice of Appeal lodged outside the prescribed time is incompetent and may be struck out. The underlying High Court judgment was not disturbed by this ruling; the effect is to terminate the intended appeal at its threshold.

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 on 9th October 2001 was filed outside the time prescribed by the Court's Rules and is therefore invalid
  2. 2.Whether the invalid Notice of Appeal should be struck out

Key legal issues

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01

Validity of a Notice of Appeal filed out of time without extension

Holding

A Notice of Appeal lodged beyond the prescribed period is invalid and will be struck out on application.

Reasoning

The intended appeal was from a judgment delivered on 4th September 2001. The Notice of Appeal was not lodged until 9th October 2001, well outside the period prescribed by the Rules of the Court. No extension of time was in place, so the Notice was a nullity and was struck out with costs.

p. 2

Legal principles established

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  • A Notice of Appeal lodged outside the time prescribed by the Court of Appeal Rules is invalid and liable to be struck out.

Court orders

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  1. 1.The Notice of Appeal dated 21st September 2001 and lodged on 9th October 2001 is struck out
  2. 2.Costs of the application to the applicants

The bench

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

JG
majority
Philip Kiptoo Tunoi
majority
AL
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.C No. 99 of 1997
Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal over an intended appeal from the High Court under the Court of Appeal Rules (application to strike out an invalid 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.

We grant the application as prayed in the motion before us.
p. 2Disposition - application granted
The Notice of Appeal was lodged on 9th October, 2001, well outside the time prescribed by the Rules of this Court. Thus, the Notice of Appeal so lodged is invalid. It is ordered struck out with costs to the applicants.
p. 2Final orders - invalid Notice of Appeal struck out with costs

Issues in the judgment

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minor

The case header describing the intended appeal from the High Court is truncated mid-date in the record supplied ('dated 4th September, 20'), leaving the full date only inferable from the body of the ruling.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "ROBLEY MUKTAR LUCUQH,ZAMZAM OMAR vs KIMEMIA WANJOHI,COASTLINE SAFARIS LIMITED [2003] KECA 137 (KLR)", Case Analysis (2003). Civil Application No. Nai. 350 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/137/eng@2003-01-23

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