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Court of AppealStruck OutCivil Appeal No. 53 of 2001

Bahati Women Company Limited v Joseph Mathenge Muturi & 7 others [2003] KECA 149 (KLR)

Court of Appeal of Kenya
28 February 2003
Philip Kiptoo TunoiP. K. TunoiSBS. E. O. BosireEOE. Owuor
259 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out the appeal because key paperwork was late and inaccurate, proving strict deadlines can end a case.

What this practically means

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Executive summary

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In a short ruling delivered at Nakuru on 28th February 2003, a bench of Tunoi, Bosire and Owor, JJ.A determined a respondents' application dated 24th April 2001 seeking the striking out of the appellant's appeal in Civil Appeal No. 53 of 2001, which challenged the ruling of Rimita, J. in H.C.C.C. No. 375 of 2000 dated 8th November 2000. Counsel for the respondents, Mr Mbeche, conceded - and the court accepted as proper - that the notice of appeal included in the record of appeal had been served out of time without leave, and further that the order appealed from contained in the record did not tally with the ruling of the High Court. The court held that because an order is a primary document that cannot be amended, these defects rendered the appeal incurably defective. The court accordingly allowed the respondents' application with costs, struck out both the notice of appeal and the appeal as incompetent, and awarded the costs of the appeal to the respondents, to be taxed if not agreed. The decision of the High Court was not disturbed on the merits; the appeal was simply removed from the roll for incurable procedural defects. The ruling binds lower courts to the proposition that a record of appeal containing an order that does not correspond to the decision below, coupled with out-of-time service of the notice of appeal without leave, is fatally defective.

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, having been served out of time without leave, rendered the appeal incompetent
  2. 2.Whether the order in the record of appeal not tallying with the ruling of the superior court rendered the appeal incurably defective

Key legal issues

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01

Effect of a defective record of appeal on competency

Holding

An appeal whose record contains an order that does not tally with the ruling of the superior court, and whose notice of appeal was served out of time without leave, is incurably defective and liable to be struck out

Reasoning

The court accepted counsel's concession that the notice of appeal was served out of time without leave and that the order in the record did not tally with the ruling. Because an order is a primary document that cannot be amended, the defect could not be cured, leaving the appeal incompetent.

p. 2

Legal principles established

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  • Where the notice of appeal is served out of time without leave and the order appealed from as contained in the record does not tally with the ruling of the superior court, the appeal is incurably defective and must be struck out

Court orders

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  1. 1.The respondents' application dated 24th April, 2001 is allowed with costs
  2. 2.Both the notice of appeal and the appeal are struck out as incompetent
  3. 3.Costs of the appeal awarded to the respondents, to be taxed if not agreed upon

The bench

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

Philip Kiptoo Tunoi
majority

Wrote the judgment

SB
majority

Wrote the judgment

EO
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 375 of 2000
Jurisdiction invoked
Appeal to the Court of Appeal under the applicable appellate provisions (not expressly cited in the ruling)

Relief refused

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Prosecution of the appeal by the appellant

The appeal was incurably defective because the notice of appeal was served out of time without leave and the order in the record did not tally with the ruling of the superior court

Costs

The application dated 24th April, 2001 allowed with costs; costs of the appeal awarded to the respondents to be taxed if not agreed upon.

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.

the notice of appeal included in the record of appeal was served out of time without leave, and also that the order appealed from which is part of the record does not tally with the ruling of the superior court appealed against
p. 2Concessions establishing defects in the appeal
considering that the order is a primary document and cannot be amended, it follows that this appeal is incurably defective
p. 2Incurable defect - order as primary document
we allow the respondents' application dated 24th April, 2001, with costs, strike out both the notice of appeal and the appeal as incompetent
p. 2Final orders - striking out

Issues in the judgment

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minor

The judgment is headed 'RULING OF THE COURT' and refers to 'this application' and 'respondents' application dated 24th April, 2001', yet the case is captioned as an appeal; the precise nature of the interlocutory application before the Court is not stated in the text

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bahati Women Company Limited v Joseph Mathenge Muturi & 7 others [2003] KECA 149 (KLR)", Case Analysis (2003). Civil Appeal No. 53 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/149/eng@2003-02-28

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