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Court of AppealAllowedCivil Application No. Nai 237 of 2001· [2001] KECA 348 (KLR)

Victor Caetano D'souza & 10 others v Saki Limited [2001] KECA 348 (KLR)

Court of Appeal
20 December 2001
ROR. S. C. OmoloPhilip Kiptoo TunoiP. K. TunoiMKM. Ole Keiwua
275 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a stale notice of appeal can be struck out when the appellant has simply lost interest in pursuing it.

What this practically means

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Executive summary

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This was an interlocutory application in the Court of Appeal at Nairobi by eleven applicants seeking to strike out a notice of appeal lodged by Saki Limited, the respondent, in an intended appeal from a ruling of the High Court of Kenya at Nairobi (O'Kubasu JA) dated 12th May 2000 in H.C.C.C. No. 4503 of 19[...]. The notice of appeal had been filed on 24th May 2000, and by the time of the application, filed on 10th July 2001, more than a year had passed with no progress. The court relied on the replying affidavit of Mr Murugara, which showed that the respondent had lost interest in the intended appeal and that its advocates were unable to communicate with it. The court, coram Omolo, Tunoi and Ole Keiwua JJ.A, held that it would be unfair to the applicants to keep the notice of appeal pending indefinitely in those circumstances. It allowed the applicants' notice of motion and ordered that the respondent's notice of appeal be struck out, with the costs thereof to the applicants. The ruling was delivered at Nairobi on 20th December 2001 and signed by all three judges. No authorities or statutory provisions were cited in the short ruling, and there were no separate or dissenting opinions.

Key legal issues

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Whether a stale notice of appeal, where the appellant has lost interest, should be struck out

Holding

The court struck out the notice of appeal, holding that it would be unfair to the applicants to keep it pending indefinitely where the respondent had lost interest and could not be contacted.

Reasoning

The respondent's notice of appeal had been lodged on 24th May 2000, over a year before the application, and nothing had been heard from the respondent since. Its advocates were unable to communicate with it. The court found that in these circumstances it would be unfair to the applicants to leave the notice of appeal pending indefinitely, and allowed the motion to strike it out with costs.

p. 1

Legal principles established

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  • A notice of appeal may be struck out where the appellant has lost interest in the intended appeal and allowing it to remain pending would be unfair to the respondent.

Court orders

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  1. 1.The applicants' notice of motion dated 10th July 2001 is allowed
  2. 2.The respondent's notice of appeal filed in the Court on 24th May 2000 is struck out
  3. 3.Costs of the notice of appeal to the applicants
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 4503 of 19[...]
Jurisdiction invoked
Inherent jurisdiction of the Court of Appeal to strike out a notice of appeal in an intended appeal (application to strike out a notice of appeal)

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, "Victor Caetano D'souza & 10 others v Saki Limited [2001] KECA 348 (KLR)", Case Analysis (2001). Civil Application No. Nai 237 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/348/eng@2001-12-20

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