Tullow Oil PLC & 3 others v Permanent Secretary, Min of Energy, Republic of Kenya & 15 others
The bottom line
#A notice of appeal lapses if no appeal is filed on time.
What this practically means
#The Supreme Court ruled that a notice of appeal is automatically withdrawn if the actual appeal is not filed within the required 30 days. The court also clarified that a preliminary objection must raise a pure legal question, not disputed facts. In this case, the 16th respondent's objection failed because it relied on factual arguments, not a clear point of law.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 16th Respondent has put forward a competent preliminary objection?
- 2.Whether this Court should withdraw and or strike out the 16th Respondent’s Notice of Appeal dated 8th August, 2016.
Key legal issues
#Whether the 16th Respondent's preliminary objection was competent.
The preliminary objection failed because it did not raise a pure point of law as required by the Mukisa Biscuit principles.
The Court applied the settled test for a preliminary objection: it must be a pure point of law, pleaded or arising by clear implication, which if argued may dispose of the suit. The 16th Respondent's objection raised factual disputes about the application's defects and counsel's conduct, not a pure point of law. Therefore, it did not meet the threshold and was dismissed.
Whether the 16th Respondent's Notice of Appeal should be withdrawn or struck out for failure to file the appeal within the prescribed time.
The Notice of Appeal was deemed withdrawn because the 16th Respondent failed to institute the appeal within 30 days as required by Rule 33(1) of the Supreme Court Rules.
The Court noted that the Notice of Appeal was filed on 8th August 2016, and the time for filing an appeal as of right lapsed on 7th September 2016. No appeal was filed. For an appeal under Article 163(4)(b), the time lapses 30 days after grant of certification, but there was no evidence that the 16th Respondent sought or obtained certification. The Court found no sufficient grounds for the failure to file the appeal within time, and thus allowed the application to withdraw or strike out the Notice of Appeal under Rule 37(1).
Legal principles established
#- A preliminary objection must be based on a pure point of law, not disputed facts.
- A notice of appeal is deemed withdrawn if the appeal is not filed within 30 days.
- Courts can strike out or withdraw a notice of appeal on application or their own motion.
- Failure to file an appeal on time requires sufficient justification to avoid automatic withdrawal.
Court orders
#- 1.The Notice of Motion application dated 28th February, 2018 be and is hereby allowed.
- 2.The Notice of Preliminary Objection dated 4th April, 2018 is hereby disallowed.
- 3.The 16th Respondent shall bear the costs of the Applicants.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No. 376 of 2014
- Jurisdiction invoked
- Rule 37(1) of the Supreme Court Rules, 2012
Relief refused
#Preliminary objection that the Court lacks jurisdiction and the application is defective
The preliminary objection did not meet the threshold set in the Mukisa Biscuit case as it did not raise a pure point of law.
Costs
The 16th Respondent shall bear the costs of the Applicants.
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.
a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.
Where a party has lodged a notice of appeal but fails to institute the appeal within the prescribed time, the notice of appeal shall be deemed to have been withdrawn, and the Court may on its own motion or on application by any party make such orders as may be necessary.
Key timeline
#Practical implications
#Strict compliance with appeal timelines
Ensure you file the actual appeal within 30 days of lodging a notice of appeal. If you miss the deadline, you must provide compelling reasons for the delay. Relying on a preliminary objection that mixes law and fact will likely fail, as the court strictly applies the Mukisa Biscuit test.
Monitor legal deadlines closely
If your company is involved in litigation, track all appeal deadlines. A notice of appeal filed by an opponent does not stop the clock—the actual appeal must be filed within 30 days. Failure to do so can result in the notice being automatically withdrawn, saving you time and costs.
Know your appeal rights and limits
If you plan to appeal a court decision, you must file the appeal itself within 30 days of the notice. Missing this deadline without a good reason means your notice of appeal becomes invalid. Also, raising a preliminary objection that argues facts rather than pure law will not stop the case from moving forward.
Frequently asked questions
#What happens if I file a notice of appeal but don't file the appeal in time in Kenya?+
Under Supreme Court rules, your notice of appeal is automatically withdrawn if you don't file the actual appeal within 30 days. The court can also strike it out on application. You must provide strong reasons for the delay to avoid this.
What is a preliminary objection in Kenyan law?+
A preliminary objection is a legal argument that raises a pure point of law, assuming all facts pleaded by the other side are true. It cannot rely on disputed facts or require evidence. If it does, the court will dismiss it, as happened in this case.
Can I challenge a notice of appeal for being late in Kenya?+
Yes. If the other party files a notice of appeal but fails to file the actual appeal within 30 days, you can apply to the court to have the notice deemed withdrawn or struck out. The court will grant this unless the other party shows good cause for the delay.
What is the Mukisa Biscuit case in Kenya?+
The Mukisa Biscuit case established the test for a valid preliminary objection in Kenya. It must raise a pure point of law, be based on admitted facts, and if successful, dispose of the entire suit. This case reaffirmed that principle.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Pithom Investments Ltd v Rukema Investments & Construction Company Limited & 2 others (Environment and Land Case 101 of 2025) [2026] KEELC 4626 (KLR)[2026] KEELC 4626 (KLR)17 Jul 2026applied
Cite this brief
#Cite this brief
Caselaw, "Tullow Oil PLC & 3 others v Permanent Secretary, Min of Energy, Republic of Kenya & 15 others", Case Analysis (2019). Civil Application 4 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/36/eng@2019-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.