TRIMBORN AGRICULTURAL ENGINEERING LIMITED vs DAVID NJOROGE KABAIKO & ANOTHER [2000] KECA 88 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the record omitted the original Notice of Appeal, which had never been formally withdrawn or struck out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Appeal was filed out of time
- 2.Whether the record of appeal is defective for omitting the original Notice of Appeal as a primary document
- 3.Whether essential steps in the appeal were taken within the prescribed time, justifying striking out the appeal
Key legal issues
#Whether the Notice of Appeal in the record was filed out of time
No - it was filed within the extension granted by the superior court under section 7 of the Appellate Jurisdiction Act, and the applicant never appealed against that extension order.
The superior court had on 5th December 1997 granted fourteen days to file and seven days to serve the Notice of Appeal. The respondent filed within eleven days of that order. The applicant did not appeal against the extension order, so he could not be heard to argue the Notice was out of time. The objection instead rested on the existence of two Notices of Appeal.
Whether the record of appeal is defective for containing a second Notice of Appeal while the original subsists
Yes - the original Notice of Appeal of 25th June 1996 was never struck out under rule 80 or deemed withdrawn under rule 82, so it remained a valid primary document that had to be in the record; the second Notice and the extension proceedings were null and void.
The original Notice of Appeal, though allegedly defective, was never struck out or deemed withdrawn, so it remained a primary document under rule 85(1)(j). The respondent could not act as though no Notice existed without first clearing it. The extension proceedings in the superior court were therefore futile and their orders could not validate a fresh Notice of Appeal. The record omitted the original Notice, rendering the record and the appeal defective.
Legal principles established
#- A party cannot file a fresh Notice of Appeal while the original Notice of Appeal subsists; the original must first be struck out or deemed withdrawn under rule 82.
- A defective but subsisting Notice of Appeal remains a valid primary document that must be included in the record of appeal until it is struck out under rule 80 or deemed withdrawn under rule 82.
- A party who does not appeal against an order extending time for filing a Notice of Appeal cannot later contend that the Notice of Appeal was filed out of time.
Court orders
#- 1.The Notice of Motion is granted and the appeal (Civil Appeal No. 274 of 1998) is struck out
- 2.Costs of the application to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya (Nakuru)
- Nakuru H.C.C.C No. 395 of 1992
- Jurisdiction invoked
- Rules 9, 42 and 80 of the Court of Appeal Rules
Relief refused
#Respondent's resistance to the striking-out application
The respondent's objection that the applicant delayed in bringing the application did not defeat it; the respondent was heard but the application succeeded on its merits.
Costs
The appeal was struck out with costs to the applicant (Kenya Shield Security Ltd.)
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.
In the result, I would grant the motion and strike out the appeal with costs.
file a fresh Notice of Appeal until the original one has ceased to exist. To clear the deck for an application for extension of time to file a fresh Notice of Appeal, the original Notice of Appeal must either be struck out or deemed to have being withdrawn under rule 82 of the Rules.
The record of appeal is therefore defective hence rendering the appeal itself defective.
Issues in the judgment
#The judgment is a single-judge ruling delivered by E. Owuor JA, not a decision of a full Court of Appeal panel; it uses first-person singular ('I would grant the motion'), suggesting it may be a single judge sitting under the Court of Appeal Rules rather than a full-court judgment.
The judgment does not name the respondent in Civil Appeal No. 274 of 1998; the parties are identified only by their procedural roles.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "TRIMBORN AGRICULTURAL ENGINEERING LIMITED vs DAVID NJOROGE KABAIKO & ANOTHER [2000] KECA 88 (KLR)", Case Analysis (2000). Civil Application (Notice of Motion) in Civil Appeal No. 274 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/88/eng@2000-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.