Trimborn Agricultural Engineering Limited v David Njoroge Kabaiko & Kenya Shield Security Limited
The bottom line
#Kenya's Court of Appeal struck out an appeal because a defective notice of appeal was never properly replaced before a fresh one was filed.
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 in the record of appeal was filed out of time
- 2.Whether the High Court had jurisdiction to extend time for lodging a fresh notice of appeal while the original notice of appeal remained on record
- 3.Whether the record of appeal, lacking the original notice of appeal, was defective and the appeal incompetent
Key legal issues
#Jurisdiction of the High Court to extend time for a fresh notice of appeal
The High Court acted without jurisdiction because the original notice of appeal, though defective, was still subsisting and had not been struck out or deemed withdrawn.
Section 7 of the Appellate Jurisdiction Act is available only the first time an intending appellant manifests an intention to appeal and before any steps are taken. Once a valid notice of appeal is lodged, the matter leaves the superior court's domain. The original notice here was never struck out under rule 80 or deemed withdrawn under rule 82, so the extension of time and the second notice were null and void.
Completeness of the record of appeal
The record was fatally defective because it contained only the second, null notice of appeal and omitted the original notice of appeal, a primary document.
The original notice of appeal lodged on 25th June 1996 was a primary document which had to be included in the record under rule 85(1)(j). Its absence rendered the record incomplete and the appeal incompetent, independently of the invalidity of the second notice.
Defects in the original notice of appeal
The original notice was incompetent for omitting the names of the first and second third parties, one of whom was also apparently not served.
All parties directly affected by the judgment must be included in and served with a properly headed notice of appeal; an intending appellant who does not wish to serve a party must apply for directions under rule 76(1). The omission of the two third parties made the first notice invalid.
Legal principles established
#- A notice of appeal is a primary document which gives the Court of Appeal jurisdiction and cannot be amended.
- A party cannot file a fresh notice of appeal until the original notice has been struck out or deemed withdrawn under rule 82.
- While a subsisting notice of appeal remains on record, the High Court has no jurisdiction under section 7 of the Appellate Jurisdiction Act to extend time to lodge a fresh notice of appeal.
- Only a full bench of the Court of Appeal may order that a notice of appeal be deemed withdrawn under rule 82.
Court orders
#- 1.Civil Appeal No 274 of 1998 struck out
- 2.The first notice of appeal lodged on 25th June 1996 struck out (per Shah JA)
- 3.No order as to costs (majority)
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Agreed the appeal should be struck out because the record omitted the original notice of appeal and the second notice was a nullity, but would have awarded costs to the applicant.
In the result, I would grant the motion and strike out the appeal with costs.p. 3
Wrote the judgment
Held the High Court lacked jurisdiction to extend time for a fresh notice of appeal while the original notice remained on record unstruck; would strike out the appeal and the first notice, with no order as to costs.
So long as that notice of appeal remains, the High Court has no jurisdiction to extend time to lodge a fresh notice of appeal.p. 6
Wrote the judgment
Held the subsisting original notice of appeal rendered the High Court's extension of time and the second notice null and void, and the record incomplete; would strike out the appeal with no order as to costs given counsel's candour.
Consequently, the appellant's record of appeal is fatally defective rendering its appeal incompetent. I would therefore strike out the said appeal but with no order as to costsp. 8
- On appeal from
- High Court of Kenya at Nakuru
- HCCC No 395 of 1992
- Jurisdiction invoked
- Rules 9, 42 and 80 of the Court of Appeal Rules (application to strike out an appeal)
Relief refused
#Costs of the application to the applicant (second respondent)
Majority declined costs in view of the candour of counsel for the appellant
Costs
No order as to costs (majority of Gicheru and Shah JJA); Owuor JA would have ordered the appeal struck out with costs.
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.
It has been held time and again that a notice of appeal is a primary document. It gives jurisdiction to this Court.
So long as that notice of appeal remains, the High Court has no jurisdiction to extend time to lodge a fresh notice of appeal.
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.
Consequently, the appellant's record of appeal is fatally defective rendering its appeal incompetent. I would therefore strike out the said appeal but with no order as to costs
Issues in the judgment
#Conflicting dates for the High Court judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Trimborn Agricultural Engineering Limited v David Njoroge Kabaiko & Kenya Shield Security Limited", Case Analysis (2000). Civil Appeal No 274 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/419/eng@2000-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.