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Court of AppealDismissedCivil Application No. NAI 121 of 2001 (69/2001 UR)· [2001] KECA 69 (KLR)

Aperit Investments S.a. Satishchandra Bhimji Shah v Suryakant Bhagwanji Raja Shah

Court of Appeal of Kenya
12 October 2001
763 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a notice of appeal challenging an entire decision is valid, and delays caused by the court itself won't get appeals struck out.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Tunoi, O'Kubasu and Keiwua JJ.A) dismissing an application by Aperit Investments S.A. and Satishchandra Bhimji Shah to strike out a notice of appeal filed by Suryakant Bhagwanji Raja Shah on 11th January 2001. The notice was lodged in an intended appeal against a ruling of Kuloba J of the High Court at Nairobi dated 21st December 2000 in H.C.C.A. No. 3906 of 1991, which entered judgment for the first applicant in the sum of $31,646,306.28. The applicants advanced two limbs: first, that the notice was defective because it did not specify the part of the decision complained of, the draft memorandum of appeal suggesting the respondent intended to appeal against only part of the decision; second, that the respondent had failed to take essential steps to institute the appeal, being guilty of laches and delaying tactics. Mr Dhanji, for the respondent, countered that the notice showed dissatisfaction with the whole decision, that the draft memorandum was provisional and amendable, and that the respondent had applied without delay for proceedings whose typing he could not control. The court agreed with the respondent on both limbs. It held that a draft memorandum of appeal is provisional and not final and may be amended before incorporation in the record of appeal; that the notice validly expressed the respondent's desire to challenge the entire decision, the applicants not being able to choose for him the part of the decision to canvass; and that no essential step had been omitted, the record not having been filed because the superior court had not indicated the proceedings were ready, with rule 81 available on computation of time. The application was dismissed with costs.

Key legal issues

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01

Whether a notice of appeal is defective for failing to specify the part of the decision complained of where the intending appellant challenges the whole decision

Holding

The notice of appeal was valid. It expressed the respondent's desire to challenge the entire decision of the learned Judge, and the applicants could not choose for him the part of the decision to canvass on appeal

Reasoning

The applicants relied on the draft memorandum of appeal to argue that the intended appeal targeted only part of Kuloba J's ruling - the judgment sum of $31,646,306.28 - and not the dismissal of the security-for-costs application, so the notice's silence was fatal. The court rejected this: the draft memorandum is provisional and amendable, so it cannot be used to narrow the notice; the notice itself manifested dissatisfaction with the whole decision, and the choice of what to appeal rests with the intending appellant alone

p. 2
02

What is the legal status and effect of a draft memorandum of appeal

Holding

A draft memorandum of appeal is provisional and not final; it may be amended before it is incorporated in the record of appeal and may not contain all the grounds of appeal that may be canvassed in the intended appeal

Reasoning

Because the draft memorandum may be amended at any time before the record of appeal is duly lodged, it cannot be treated as a definitive statement of the grounds to be pursued. It follows that an apparent mismatch between a draft memorandum and the notice of appeal cannot ground a striking-out application; the notice governs, and the grounds may be refined or expanded when the record of appeal is eventually lodged

p. 2
03

Whether the respondent failed to take essential steps to institute the appeal

Holding

No essential step was omitted. The respondent applied without delay for the uncertified copies of the proceedings and the ruling, and the record of appeal had not been filed only because the superior court had not indicated that the proceedings were ready for collection

Reasoning

The applicants alleged laches and delaying tactics. The court found the respondent had no control over, and could not dictate to, the superior court regarding the typing of the proceedings; he could only wait for an indication that the documents were ready for collection. The delay was in part attributable to the applicants' own requests for mentions before Kuloba J. The respondent was also entitled to rely on rule 81 on computation of time

p. 2
04

Whether the respondent could rely on rule 81 as regards computation of time

Holding

Yes. The respondent was entitled to rely on the provisions of rule 81 as regards computation of time

Reasoning

Since the record of appeal had not been filed through no fault of the respondent - the superior court had not communicated that the proceedings applied for on time were ready for collection - the respondent could invoke rule 81 on the computation of time. This reinforced the conclusion that no essential step had been omitted and that striking out the notice of appeal was unwarranted

p. 2

Legal principles established

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  • A draft memorandum of appeal is provisional and not final; it may be amended before it is incorporated in the record of appeal and need not contain all the grounds of appeal that may be canvassed in the intended appeal
  • A notice of appeal that expresses the intending appellant's dissatisfaction with the entire decision is valid notwithstanding that an accompanying draft memorandum targets only part of it; no other party can choose for the appellant the part of the decision to appeal against
  • An intending appellant who has timeously applied for copies of the proceedings does not fail to take an essential step merely because the record of appeal has not been filed while the superior court has not yet indicated that the proceedings are ready for collection
  • An intending appellant is entitled to rely on rule 81 as regards computation of time

Court orders

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  1. 1.The application to strike out the notice of appeal is dismissed
  2. 2.The applicants to pay the costs of the application, the application having been dismissed with costs
On appeal from
High Court of Kenya at Nairobi
H.C.C.A. No. 3906 of 1991
Jurisdiction invoked
Rules 42, 43, 74(3), 80 and 81 of the Rules of this Court, under which the application was expressed to be brought; no constitutional provision invoked

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, "Aperit Investments S.a. Satishchandra Bhimji Shah v Suryakant Bhagwanji Raja Shah", Case Analysis (2001). Civil Application No. NAI 121 of 2001 (69/2001 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/69/eng@2001-10-12

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