AKAMBA PUBLIC ROAD SERVICES LIMITED v FLORENCE MNYANZI ISANYA & 6 OTHERS [2007] KECA 339 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a Notice of Appeal that misdated the decision being appealed, ruling the error made it incompetent.
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 mis-dating of the decision appealed against in the Notice of Appeal (reciting 26th December 2002 instead of 26th November 2002) rendered the Notice of Appeal incompetent and liable to be struck out
- 2.Whether the appropriate order was striking out the Notice of Appeal rather than dismissal of the appeal
Key legal issues
#Effect of mis-dating the decision appealed against in a Notice of Appeal
The mis-dating was an inadvertent typographical error but rendered the Notice of Appeal incurably defective and incompetent, warranting striking out.
The court examined the grounds and the supporting affidavit, which conceded that the only defect was the mis-dating of the ruling of 26th November 2002 as 26th December 2002. It agreed that the defect apparent on the face of the Notice rendered it incompetent and therefore liable to be struck out, the correct remedy being striking out and not dismissal since there had been no hearing on the merits.
Choice of remedy: striking out versus dismissal
Where a Notice of Appeal is incompetent due to an incurable defect, the proper order is striking out, which leaves the applicant free to seek to file a fresh Notice of Appeal out of time; dismissal applies only to matters heard on merits.
Counsel for the respondents urged dismissal, arguing the applicant took two years to discover the error and the respondents would be prejudiced, with money due to them being held up. The court nevertheless held that dismissal would only lie if the matter were heard on merits; since the defect was apparent on the face of the Notice, striking out was the appropriate disposition.
Applicable rule for striking out a Notice of Appeal
Although the motion invoked rules 1 and 44 of the Court of Appeal Rules, the relevant provision was rule 80 of the Rules.
The court observed at the outset that the rules cited by the applicant had no relevance to the application. Since the application sought striking out of a Notice of Appeal, the court identified rule 80 as the applicable rule and dealt with the application on that basis.
Legal principles established
#- A Notice of Appeal that mis-states the date of the decision appealed against is defective on its face and incompetent, and is liable to be struck out rather than dismissed.
- Dismissal of an appeal is reserved for cases heard on the merits, whereas a Notice of Appeal afflicted with an incurable defect is struck out.
Court orders
#- 1.The Notice of Appeal dated 9th December 2002 is struck out
- 2.The respondents' costs of the application to be paid by the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Nairobi
- H.C.C.C. No. 1852 of 1998
- Jurisdiction invoked
- Rules 1 and 44 (in truth rule 80) of the Court of Appeal Rules - the court did not state a constitutional or statutory basis for jurisdiction
Relief refused
#Respondents' submission that the Notice of Appeal be dismissed rather than struck out
Dismissal lies only where the matter is heard on merits; the Notice was incompetent and so was struck out
Costs
The respondents' costs of this application shall be paid by the applicant.
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.
We agree with the applicant that the defect apparent on the face of the Notice of Appeal renders it incompetent and therefore liable to be struck out.
An order of dismissal would only lie if the matter was heard on merits.
we accede to the application dated 5th July 2004 and order that the Notice of Appeal dated 9th December 2002 be and is hereby struck out.
The respondents’ costs of this application shall be paid by the applicant.
Issues in the judgment
#The coram headings name the judges without their full rank heading on separate lines, but the signatures identify them as Judges of Appeal; also the judgment header contains a typographical error ('PEAL AT NAIROBI').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "AKAMBA PUBLIC ROAD SERVICES LIMITED v FLORENCE MNYANZI ISANYA & 6 OTHERS [2007] KECA 339 (KLR)", Case Analysis (2007). Civil Application No. 161 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/339/eng@2007-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.