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Court of AppealStruck OutCivil Application Nai No. 223 of 2005 (132/2005 UR)· [2008] KECA 131 (KLR)

Vantage Road Transporters Limited & 1 other v Mistry Valji Naran Mulji & 5 others

Court of Appeal of Kenya
8 February 2008
ROR. S. C. OmoloEOE. O. O'KubasuJOJ. W. Onyango Otieno
3,328 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that when an appeal file is struck out, the original appeal notice dies with it, so no stay of execution can be granted.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on a notice of motion dated 30th July, 2005 brought under Rules 5(2)(b), 42 and 20(2) of the Court of Appeal Rules, seeking a stay and/or suspension of execution of orders made by Mwera, J in H.C.C. Suit No. 55 of 2005 at Mombasa on 29th July, 2005, together with bail for the 2nd applicant. The applicants had filed a notice of appeal on 29th July, 2005 and subsequently lodged Civil Appeal No. 274 of 2005, which was struck out on 27th July, 2007 as incompetent for want of leave to appeal, with leave to institute a fresh appeal being refused. Counsel for the applicants argued that a notice of appeal survives the striking out of the record of appeal, relying on the decision in Kenya Anti-Corruption Commission v First Mercantile Securities Corporation and on Shah, JA's view in Gabriel Kigi v Kimotho Mwaura. The Court rejected these submissions. It held, endorsing Cockar, CJ in Afro Meat Company Ltd v Syprose Ageke Owuor and Bosire, JA in Edward Allan Robinson v Philip Gikaria Muthami, and expressly declining to follow Shah, JA, that upon the striking out of a record of appeal the notice of appeal does not survive; the appellant must seek extension of time to file a fresh notice of appeal. Since no valid notice of appeal remained, the Court held it had no jurisdiction under Rule 5(2)(b) to grant any stay, and struck out the motion with costs to the 1st respondent. The High Court orders of 29th July, 2005 were not disturbed.

Key legal issues

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01

Whether a notice of appeal survives the striking out of the record of appeal

Holding

It does not. The Court rejected Shah, JA's view in Gabriel Kigi and endorsed Cockar, CJ's position in Afro Meat, holding that upon striking out of the record the notice of appeal becomes spent and a fresh notice is required.

Reasoning

The Court surveyed the practice of the Court, noting that applications for extension of time to file a fresh notice of appeal are invariably made after a record of appeal is struck out, as in Robinson and Catherine Karungaru Karl. It held that Shah, JA's contrary view lacked authority support and was contrary to established practice. It followed Cockar, CJ that once the record is struck out, the notice of appeal, a copy of which must be in the record under Rule 85(1)(j), loses its value and cannot found a fresh appeal.

p. 5
02

Whether the Court had jurisdiction to entertain the stay application

Holding

It did not. With no valid notice of appeal in existence, there was no basis for a Rule 5(2)(b) application, and the motion was struck out.

Reasoning

Rule 5(2)(b) presupposes an intention to appeal manifested by a notice of appeal filed under Rule 74. Since the appeal (Civil Appeal No. 274 of 2005) had been struck out on 27th July, 2007, and the notice of appeal did not survive that striking out, there was nothing upon which the stay application could be based. The Court therefore lacked jurisdiction to hear and determine the motion.

p. 3

Legal principles established

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  • Where a record of appeal is struck out, the notice of appeal does not survive; the appellant must seek extension of time to file a fresh notice of appeal
  • Jurisdiction under Rule 5(2)(b) requires a subsisting notice of appeal; without an intention to appeal evidenced by such a notice, no stay, injunction or stay of proceedings can issue

Court orders

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  1. 1.The notice of motion dated 30th July, 2005 is struck out
  2. 2.Costs of the motion awarded to the 1st respondent
On appeal from
High Court of Kenya at Mombasa
H.C.C. Suit No. 55 of 2005
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal 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, "Vantage Road Transporters Limited & 1 other v Mistry Valji Naran Mulji & 5 others", Case Analysis (2008). Civil Application Nai No. 223 of 2005 (132/2005 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/131/eng@2008-02-08

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