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Court of AppealAllowedCivil Application No. NAI 296 of 2000 (KSM. 52/2000)

Alson Retreading Co. Ltd & 3 others v Stan Luchebeleli & another [2001] KECA 116 (KLR)

Court of Appeal
21 March 2001
219 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

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A notice of appeal won't save your case — Kenya's Court of Appeal struck one out because the actual appeal was never filed in time.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Kisumu (Gicheru, Tunoi and Lakha, JJ.A.) delivered on 21 March 2001 in Civil Application No. NAI 296 of 2000. The applicants, Alson Retreading Co. Ltd. and the Lakha family members, applied to strike out a notice of appeal lodged by the respondents, Stan Luchebeleli and Kalamka Limited, against a ruling and order of Wambilyangah J of the High Court at Kisumu dated 9 February 2000 in KSM.H.C.C.C. No. 257 of 1999. The notice of appeal had been lodged and served on the applicants on 18 February 2000. By a certificate of delay dated 15 May 2000, the respondents received copies of the proceedings and ruling on 15 May 2000, yet by the date of the ruling no appeal had been lodged. The court held that an essential step in the proceedings had not been taken within the prescribed time, allowed the application, struck out the notice of appeal lodged on 18 February 2000, and awarded the costs of the application to the applicants. The ruling is a single judgment of the whole court with no separate opinions or dissents, and it cites no authorities or statutory provisions. Its binding effect for lower courts and practitioners lies in confirming that a notice of appeal is vulnerable to being struck out where the appeal itself is not lodged within the prescribed time.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the notice of appeal should be struck out where an essential step in the appeal (lodging the appeal) has not been taken within the prescribed time

Key legal issues

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01

Striking out a notice of appeal for failure to lodge the appeal within the prescribed time

Holding

The notice of appeal was struck out because, months after service and receipt of the proceedings and ruling, no appeal had been lodged, meaning an essential step had not been taken within the prescribed time.

Reasoning

The court noted the notice of appeal was lodged and served on 18-2-2000 and that by the certificate of delay dated 15-5-2000 the respondents received copies of the proceedings and ruling on 15-5-2000. As at the hearing, no appeal had been lodged. That inaction constituted failure to take an essential step within the prescribed time, justifying striking out the notice of appeal and awarding costs to the applicants.

p. 1

Legal principles established

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  • Where an essential step in the appeal, namely lodging the appeal, is not taken within the prescribed time, the notice of appeal may be struck out.

Court orders

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  1. 1.The Notice of Appeal lodged in the Court on 18th February 2000 is struck out
  2. 2.Costs of the application awarded to the applicants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kisumu
KSM.H.C.C.C. No. 257 of 1999
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal over its own process (application to strike out a notice of appeal lodged in the Court)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Consequently, an essential step in the proceedings has not been taken within the prescribed time and in the result, we grant the applicant's application and strike out the Notice of Appeal lodged in this Court on 18th February, 2000.
p. 1Striking out notice of appeal for failure to lodge appeal in time
The costs of this application are awarded to the applicants.
p. 1Costs of the striking-out application

Issues in the judgment

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minor

The coram lists Lakha as 'JJ.A.' but the signature block describes A. A. Lakha only as 'JUDGE', an internal inconsistency in the rank designation.

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, "Alson Retreading Co. Ltd & 3 others v Stan Luchebeleli & another [2001] KECA 116 (KLR)", Case Analysis (2001). Civil Application No. NAI 296 of 2000 (KSM. 52/2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/116/eng@2001-03-21

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