SHABBIR ALI JUSAB v ANNAR OSMAN GAMRAI & another [2009] KECA 273 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a late, incomplete notice of appeal, ending a mother's bid to block her child's return to England.
What this practically means
#Executive summary
#Key legal issues
#Whether leave must be obtained before lodging a notice of appeal
No; under Rule 74(4) a notice of appeal may be lodged before leave is obtained, so the notice was not a nullity for want of leave.
The court declined to decide whether Rawal J's decision was appealable with or without leave, because Rule 74(4) expressly removes any requirement to obtain leave or a certificate before lodging the notice of appeal. Assuming without deciding that leave was required, the notice filed before leave was obtained remained competent.
Consequence of late service of the notice of appeal
Service one day outside the seven-day period in Rule 76(1), without a pending application for extension of time, was an essential step not taken within the prescribed time and justified striking out.
Although the court has unfettered discretion under Rule 4 to extend time, that discretion is exercised upon a formal application, normally heard by a single Judge. The first respondent had not filed any extension application when the striking-out application was heard, so the essential step of timely service had not been taken. Counsel's concession that service was late could not save the notice.
Whether defects in the form and content of the notice of appeal rendered it incompetent
Incorrect heading and failure to state whether the appeal was against the whole or part of the ruling were mere form curable by the memorandum of appeal; but omission of the Attorney General as a respondent and as a party to be served affected substance and rendered the notice incompetent.
Applying section 72 of the Interpretation and General Provisions Act, deviations not affecting substance do not void a prescribed form; 'substantially in Form D' refers to substance. However, naming and service of all parties directly affected go to the substance of a notice of appeal, so omitting the Attorney General, who was a respondent below, was fatal.
Legal principles established
#- Where leave to appeal is required, it is not necessary to obtain such leave before lodging the notice of appeal, so a notice of appeal filed before leave is obtained is not a nullity.
- A prescribed form is not void for deviation that does not affect the substance of the document or is not calculated to mislead; defective form may be cured by the memorandum of appeal.
- Omission from a notice of appeal of a party who was a respondent in the superior court, and failure to list that party as one to be served, affects the substance of the notice and renders it incompetent.
- Service of a notice of appeal outside the prescribed time without a formal application for extension of time is an essential step not taken, justifying striking out under Rule 80.
Court orders
#- 1.The notice of appeal dated 17th March, 2009 and lodged on 18th March, 2009 is struck out
- 2.The interim order of stay of execution given by the Court on 31st March, 2009 in Civil Application No. Nai. 75 of 2009 is set aside
- 3.No orders as to costs of the application
- On appeal from
- High Court of Kenya at Nairobi (Family Division)
- Miscellaneous Case No. 15 of 2009
- Jurisdiction invoked
- Court of Appeal Rules, Rules 47 and 80 (application to strike out a notice of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SHABBIR ALI JUSAB v ANNAR OSMAN GAMRAI & another [2009] KECA 273 (KLR)", Case Analysis (2009). Civil Application No. Nai. 99 of 2009 (UR 61/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/273/eng@2009-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.