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Court of AppealPartially AllowedCivil Application No. 161 of 2004· [2007] KECA 67 (KLR)

Akamba Public Road Services Limited v Florence Mnyanzi Isanya & 1 other

Court of Appeal
18 May 2007
900 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a Notice of Appeal with the wrong date of the lower court's decision is defective and must be struck out, not dismissed.

What this practically means

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Executive summary

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This is a short ruling of a three-judge bench of the Court of Appeal at Nairobi (Bosire, Waki and Deverell, JJA) on a motion by Akamba Public Road Services Limited seeking to strike out its own Notice of Appeal dated 9th December 2002. The notice appealed a ruling of the High Court (Ransley, Commissioner of Assize) of 26th November 2002 in H.C.C.C. No. 1852 of 1998, but erroneously stated the date of the decision as 26th December 2002. The applicant's advocate attributed the error to inadvertence and typographical mistake, and sought striking out so as to permit a fresh Notice of Appeal to be filed out of time. The application cited rules 1 and 44 of the Court of Appeal Rules, but the court held those rules irrelevant and identified rule 80 as the applicable provision. Counsel for the respondents opposed striking out, urging dismissal instead on the ground that the applicant had taken two years to discover the error and that the respondents, who had money due to them held up, would be prejudiced. The court agreed with the applicant that the defect apparent on the face of the Notice of Appeal rendered it incompetent and therefore liable to be struck out, holding that an order of dismissal would only lie if the matter had been heard on merits. It allowed the application dated 5th July 2004, struck out the Notice of Appeal dated 9th December 2002, and ordered the applicant to pay the respondents' costs of the application. The decision of the High Court itself was not disturbed.

Key legal issues

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01

Effect of mis-dating the decision appealed from in a Notice of Appeal

Holding

The mis-dating of the decision appealed from renders the Notice of Appeal incurably defective and incompetent, so it is struck out rather than dismissed; striking out then enables the applicant to seek leave to file a fresh Notice of Appeal out of time.

Reasoning

The applicant itself sought to strike out its own Notice of Appeal because it erroneously gave the date of the decision as 26th December 2002 whereas the ruling was delivered on 26th November 2002. The court held that this error apparent on the face of the notice made it incompetent and liable to be struck out. Dismissal was inappropriate because that order presupposes a hearing on merits, which had not occurred.

p. 3
02

Correct procedural rule governing an application to strike out a Notice of Appeal

Holding

Although the motion cited rules 1 and 44 of the Court of Appeal Rules, those rules had no relevance; the relevant rule was rule 80.

Reasoning

The court observed that the application, though citing rules 1 and 44, was in substance one to strike out a Notice of Appeal, and therefore the applicable provision was rule 80 of the Rules. The court nonetheless determined the application on its merits without treating the wrong rule citation as fatal, reaching its decision under the substantive jurisdiction.

p. 2

Legal principles established

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  • A Notice of Appeal that mis-states the date of the decision appealed from is incompetent and liable to be struck out, and such a notice may only be struck out, not dismissed, dismissal being reserved for matters heard on merits.

Court orders

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  1. 1.The Notice of Appeal dated 9th December 2002 is struck out
  2. 2.The respondents' costs of the application shall be paid by the applicant
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1852 of 1998
Jurisdiction invoked
Rules 1 and 44 of the Court of Appeal Rules (the court held the relevant rule ought to be rule 80 of the 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, "Akamba Public Road Services Limited v Florence Mnyanzi Isanya & 1 other", Case Analysis (2007). Civil Application No. 161 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/67/eng@2007-05-18

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