AKAMBA PUBLIC ROAD SERVICES LIMITED v FLORENCE MNYANZI ISANYA & 6 others [2007] KECA 67 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a Notice of Appeal with the wrong date of the lower court's decision is defective and must be struck out, not dismissed.
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 dated 9th December 2002, which mis-stated the date of the High Court decision as 26th December 2002 instead of 26th November 2002, is defective and liable to be struck out
- 2.Whether the appropriate order is striking out or dismissal of the Notice of Appeal
Key legal issues
#Effect of mis-dating the decision appealed from in a Notice of Appeal
The mis-dating of the decision appealed from renders the Notice of Appeal incurably defective and incompetent, so it is struck out rather than dismissed; striking out then enables the applicant to seek leave to file a fresh Notice of Appeal out of time.
The applicant itself sought to strike out its own Notice of Appeal because it erroneously gave the date of the decision as 26th December 2002 whereas the ruling was delivered on 26th November 2002. The court held that this error apparent on the face of the notice made it incompetent and liable to be struck out. Dismissal was inappropriate because that order presupposes a hearing on merits, which had not occurred.
Correct procedural rule governing an application to strike out a Notice of Appeal
Although the motion cited rules 1 and 44 of the Court of Appeal Rules, those rules had no relevance; the relevant rule was rule 80.
The court observed that the application, though citing rules 1 and 44, was in substance one to strike out a Notice of Appeal, and therefore the applicable provision was rule 80 of the Rules. The court nonetheless determined the application on its merits without treating the wrong rule citation as fatal, reaching its decision under the substantive jurisdiction.
Legal principles established
#- A Notice of Appeal that mis-states the date of the decision appealed from is incompetent and liable to be struck out, and such a notice may only be struck out, not dismissed, dismissal being reserved for matters heard on merits.
Court orders
#- 1.The Notice of Appeal dated 9th December 2002 is struck out
- 2.The respondents' costs of the application shall be paid by the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1852 of 1998
- Jurisdiction invoked
- Rules 1 and 44 of the Court of Appeal Rules (the court held the relevant rule ought to be rule 80 of the Rules)
Relief refused
#Respondents' submission that the Notice of Appeal should be dismissed rather than struck out
An order of dismissal lies only where a matter has been heard on merits; the defective notice was incompetent and thus liable to be struck out
Costs
The respondents' costs of this application shall be paid by the applicant.
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.
We agree with the applicant that the defect apparent on the face of the Notice of Appeal renders it incompetent and therefore liable to be struck out. An order of dismissal would only lie if the matter was heard on merits.
In the circumstances we accede to the application dated 5th July 2004 and order that the Notice of Appeal dated 9th December 2002 be and is hereby struck out.
The respondents’ costs of this application shall be paid by the applicant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "AKAMBA PUBLIC ROAD SERVICES LIMITED v FLORENCE MNYANZI ISANYA & 6 others [2007] KECA 67 (KLR)", Case Analysis (2007). Civil Application No. 161 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/67/eng@2007-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.