Benjo Super Stores Limited v Kenya National Highway Limited
The bottom line
#KeNHA's appeal collapsed because it never served the appeal documents on Benjo Super Stores, showing service deadlines in Kenyan appeals are fatal if missed.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to serve the Notice of Appeal, Memorandum and Record of Appeal renders an appeal incompetent and liable to be struck out.
Yes. The Court found that no service had been demonstrated and struck out the appeal, holding there was no competent appeal before it.
Rules 77, 79 and 92 of the Court of Appeal Rules require lodgment of a notice of appeal within fourteen days, service of the notice on persons directly affected within seven days, and service of the memorandum and record of appeal within seven days of lodgment. The applicant learned of the record of appeal only through case management notices. The Court found no evidence of service in the stipulated periods, and since the thirty-day proviso to rule 86 is triggered only by service, it did not bar the application. The appeal was therefore struck out.
Legal principles established
#- Where an appellant fails to serve the Notice of Appeal, Memorandum of Appeal and Record of Appeal on the affected party within the prescribed time and there is no evidence of service, there is no competent appeal before the Court, and the appeal may be struck out under rule 86.
- The thirty-day proviso to rule 86 limiting applications to strike out applies only where service of the Notice of Appeal or Record of Appeal has occurred; it does not bar an application where no service was effected at all.
Court orders
#- 1.The respondent's appeal against the rulings of the High Court dated 15th April 2021 and 28th May 2021 is struck out
- 2.Costs of the application to the applicant
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Rule 86 and rule 92 of the Court of Appeal Rules, 2022 (application to strike out an appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjo Super Stores Limited v Kenya National Highway Limited", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/290/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.