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Court of AppealStruck OutCivil Application No. 223 of 2005 (132/2005 UR)· [2008] KECA 256 (KLR)

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

Court of Appeal of Kenya
8 February 2008
3,325 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that when your record of appeal is struck out, your notice of appeal dies with it, so you cannot rely on it for a stay.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Omolo, O'Kubasu and Onyango Otieno, JJA) on a notice of motion dated 30th July 2005 seeking, under Rule 5(2)(b) of the Court of Appeal Rules, a stay and/or suspension of the execution of orders made by Mwera J in H.C.C.C. Suit No. 55 of 2005 at Mombasa on 29th July 2005, and bail for the second applicant pending an intended appeal. The applicants had filed a notice of appeal on 29th July 2005 and later lodged Civil Appeal No. 274 of 2005, which was struck out on 27th July 2007 for want of leave, the applicants having conceded incompetence. Counsel for the applicants argued that the notice of appeal survived the striking out of the record of appeal, relying on Shah JA's view in Gabriel Kigi. The Court rejected that argument. Reviewing Cockar CJ's contrary view in Afro Meat, Bosire JA's decision in Edward Allan Robinson, and the full Court decision in Catherine Karungaru Karl, the Court held that upon the striking out of a record of appeal the underlying notice of appeal becomes spent; a party wishing to appeal afresh must obtain an extension of time to file a fresh notice. Consequently, no valid notice of appeal remained upon which the stay application could be grounded, and the Court had no jurisdiction to entertain the motion. The motion was struck out with costs to the first respondent.

Key legal issues

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01

Whether the Court can entertain a Rule 5(2)(b) stay application when the record of appeal has been struck out

Holding

No. Striking out the record of appeal leaves no valid notice of appeal, and the Court therefore lacks jurisdiction under Rule 5(2)(b) to grant stay of execution, injunction or stay of proceedings.

Reasoning

The Court held that Rule 5(2)(b) jurisdiction is conditioned on a notice of appeal filed under Rule 74, which manifests an intention to appeal. The applicants' appeal (Civil Appeal No. 274 of 2005) was struck out on 27th July 2007 for incompetence. Adopting the majority line of authority (Cockar CJ in Afro Meat, Bosire JA in Robinson, the full Court in Karungaru) and rejecting Shah JA's contrary view in Kigi, the Court held the notice of appeal does not survive the striking out of the record. With no subsisting notice of appeal, the stay application was a nullity and was struck out.

p. 5
02

Whether a notice of appeal remains valid after the record of appeal is struck out

Holding

The notice of appeal becomes spent on the striking out of the record of appeal and cannot form the basis of a fresh appeal; a party wishing to appeal must seek extension of time to file a fresh notice.

Reasoning

The Court reviewed the conflicting views of Cockar CJ in Afro Meat and Shah JA in Kigi. It aligned itself with Cockar CJ's view, as echoed in Bosire JA's decision in Robinson and the full Court decision in Karungaru, that the practice of the Court requires extension of time for a fresh notice of appeal after a record is struck out. Shah JA's contrary view was declared unsupported by authority, contrary to established practice, and erroneous.

p. 5

Legal principles established

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  • A notice of appeal does not survive the striking out of the record of appeal; once the record of appeal is struck out, the notice of appeal becomes spent and no stay application can be founded on it.
  • The Court's jurisdiction under Rule 5(2)(b) presupposes a filed notice of appeal manifesting an intention to appeal; without such an intention, no stay, injunction or stay of proceedings can issue.
  • An appellant whose appeal has been struck out must start afresh by seeking extension of time to file a fresh notice of appeal.

Court orders

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  1. 1.The notice of motion dated 30th July 2005 be and is hereby struck out with costs thereof 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 (application for stay, injunction or stay of further proceedings pending appeal)

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 No. 223 of 2005 (132/2005 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/256/eng@2008-02-08

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