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Court of AppealAllowedNotice of Motion under rules 1(2), 4, 74 and 81(1) of the Court of Appeal Rules (arising from Civil Appeal No. 140 of 1997)· [1998] KECA 3 (KLR)

Noradhco Kenya Limited v Loria Michele [1998] KECA 3 (KLR)

Court of Appeal of Kenya
23 January 1998
GPG. S. Pall
1,460 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that filing a notice of appeal doesn't block you from seeking review of the same judgment.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Mombasa by G.S. Pall, JA, on a notice of motion by Narodhco Kenya Ltd under rules 1(2), 4, 74 and 81(1) of the Court of Appeal Rules seeking extension of time to file a fresh notice of appeal and record of appeal. The underlying dispute arose from summary judgment entered against the applicant in 1994 for goods sold and delivered worth Shs. 1,500,000. While its notice of appeal was pending, the applicant applied for review of that judgment; the review was dismissed by Lady Justice Ang'awa in 1996, and the applicant's subsequent appeal against that ruling was struck out in 1997. The respondent argued that the pending notice of appeal had divested the applicant of the right to seek review, so the review ruling was a nullity and no useful appeal could lie. Rejecting that argument, the court followed Haryanto v ED & F. Man (Sugar) Ltd and Motel Schweitzer v Cunningham, holding that a notice of appeal is merely notice of intention to appeal and does not amount to preferring an appeal; an appeal is instituted only when the record is lodged, fees paid and security provided. The court found the intended appeal arguable, noted the original appeal was struck out in limine without being heard on the merits, found no inordinate delay, and allowed the motion. Time was extended: the notice of appeal to be filed within 7 days and the record of appeal within a further 21 days, with costs of the motion to abide the result of the intended appeal. A postscript records that the original file confirmed only the applicant's version of the striking-out order.

Key legal issues

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01

Whether a pending notice of appeal ousts the jurisdiction of the superior court to entertain an application for review

Holding

No. A notice of appeal is only notice of intention to appeal; an appeal is instituted only when the record is lodged, fees paid and security provided. The superior court therefore had jurisdiction to entertain the review application notwithstanding the pending notice of appeal.

Reasoning

The court relied on Haryanto v ED & F. Man (Sugar) Ltd, where the Court of Appeal held there was jurisdiction to entertain review notwithstanding a notice of appeal, and on Motel Schweitzer v Thomas Edward Cunningham, which held that a notice of appeal is notice of intention to exercise a right of appeal and that an appeal is instituted only on lodging the record, paying fees and providing security. The reasoning in the struck-out appeal that the notice of appeal divested the applicant of the right of review was rejected.

p. 2
02

Whether extension of time should be granted

Holding

Yes. The applicant had an arguable appeal, the original appeal was struck out summarily without being heard on the merits, and there was no inordinate delay.

Reasoning

The proposed memorandum of appeal raised arguable grounds, including that the goods supplied were uncustomed goods illegally imported and were seized by customs authorities, so that the consideration totally failed. The appeal had been struck out in limine for a procedural defect, and refusing an extension would work injustice by depriving the applicant of the right to have its appeal determined on the merits.

p. 3

Legal principles established

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  • The filing of a notice of appeal does not deprive a party of the right to apply for review under Order 44 rule 1 of the Civil Procedure Rules; a notice of appeal is not tantamount to preferring an appeal.
  • An appeal is not instituted in the Court of Appeal until the record of appeal is lodged, fees paid and security lodged.

Court orders

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  1. 1.Extension of time for filing the notice of appeal under rule 4 of the Court of Appeal Rules
  2. 2.The applicant to file the notice of appeal within 7 days of the order
  3. 3.The applicant to file the record of appeal within a further 21 days of filing the notice of appeal
  4. 4.Costs of the notice of motion to abide the result of the intended appeal
On appeal from
High Court of Kenya
Summary judgment of 9.8.1994; review dismissed 31st July 1996 by Lady Justice Ang'awa
Jurisdiction invoked
Rules 1(2), 4, 74 and 81(1) of the Court of Appeal Rules (extension of time jurisdiction under rule 4)

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, "Noradhco Kenya Limited v Loria Michele [1998] KECA 3 (KLR)", Case Analysis (1998). Notice of Motion under rules 1(2), 4, 74 and 81(1) of the Court of Appeal Rules (arising from Civil Appeal No. 140 of 1997). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/3/eng@1998-01-23

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