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Court of AppealPartially AllowedCivil Application No. 161 of 2004

AKAMBA PUBLIC ROAD SERVICES LIMITED v FLORENCE MNYANZI ISANYA & 6 OTHERS [2007] KECA 339 (KLR)

Court of Appeal of Kenya
18 May 2007
903 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out a Notice of Appeal that misdated the decision being appealed, ruling the error made it incompetent.

What this practically means

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Executive summary

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This was an application by Akamba Public Road Services Limited, itself the intending appellant, seeking to strike out its own Notice of Appeal dated 9th December 2002, which had been filed against a ruling of P.J. Ransley, Commissioner of Assize, delivered on 26th November 2002 in H.C.C.C. No. 1852 of 1998. The Notice of Appeal erroneously recited the date of the impugned decision as 26th December 2002. The applicant's advocate deposed that this was a typographical error of pure inadvertence which rendered the Notice incurably defective, and that striking it out would enable the applicant to move afresh for leave to file a new Notice of Appeal out of time. The motion had cited rules 1 and 44 of the Court of Appeal Rules, but the court held that rule 80 was the relevant provision. Counsel for the seven respondents opposed striking out, urging instead that the Notice be dismissed since the applicant had taken two years to discover the error and the respondents, to whom money was due, would be prejudiced. The court agreed with the applicant that the defect apparent on the face of the Notice rendered it incompetent and liable to be struck out, observing that dismissal would only lie if the matter had been heard on the merits. The court allowed the application, struck out the Notice of Appeal dated 9th December 2002, and ordered the applicant to pay the respondents' costs of the application. The ruling was delivered at Nairobi on 18th May 2007 by Bosire, Waki and Deverell, JJ.A. The underlying High Court ruling and the applicant's stated intention to pursue an appeal afresh were not determined by this decision.

Questions the Court framed

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

  1. 1.Whether the mis-dating of the decision appealed against in the Notice of Appeal (reciting 26th December 2002 instead of 26th November 2002) rendered the Notice of Appeal incompetent and liable to be struck out
  2. 2.Whether the appropriate order was striking out the Notice of Appeal rather than dismissal of the appeal

Key legal issues

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01

Effect of mis-dating the decision appealed against in a Notice of Appeal

Holding

The mis-dating was an inadvertent typographical error but rendered the Notice of Appeal incurably defective and incompetent, warranting striking out.

Reasoning

The court examined the grounds and the supporting affidavit, which conceded that the only defect was the mis-dating of the ruling of 26th November 2002 as 26th December 2002. It agreed that the defect apparent on the face of the Notice rendered it incompetent and therefore liable to be struck out, the correct remedy being striking out and not dismissal since there had been no hearing on the merits.

p. 2
02

Choice of remedy: striking out versus dismissal

Holding

Where a Notice of Appeal is incompetent due to an incurable defect, the proper order is striking out, which leaves the applicant free to seek to file a fresh Notice of Appeal out of time; dismissal applies only to matters heard on merits.

Reasoning

Counsel for the respondents urged dismissal, arguing the applicant took two years to discover the error and the respondents would be prejudiced, with money due to them being held up. The court nevertheless held that dismissal would only lie if the matter were heard on merits; since the defect was apparent on the face of the Notice, striking out was the appropriate disposition.

p. 2
03

Applicable rule for striking out a Notice of Appeal

Holding

Although the motion invoked rules 1 and 44 of the Court of Appeal Rules, the relevant provision was rule 80 of the Rules.

Reasoning

The court observed at the outset that the rules cited by the applicant had no relevance to the application. Since the application sought striking out of a Notice of Appeal, the court identified rule 80 as the applicable rule and dealt with the application on that basis.

p. 2

Legal principles established

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  • A Notice of Appeal that mis-states the date of the decision appealed against is defective on its face and incompetent, and is liable to be struck out rather than dismissed.
  • Dismissal of an appeal is reserved for cases heard on the merits, whereas a Notice of Appeal afflicted with an incurable defect is struck out.

Court orders

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  1. 1.The Notice of Appeal dated 9th December 2002 is struck out
  2. 2.The respondents' costs of the application to be paid by the applicant

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, Nairobi
H.C.C.C. No. 1852 of 1998
Jurisdiction invoked
Rules 1 and 44 (in truth rule 80) of the Court of Appeal Rules - the court did not state a constitutional or statutory basis for jurisdiction

Relief refused

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Respondents' submission that the Notice of Appeal be dismissed rather than struck out

Dismissal lies only where the matter is heard on merits; the Notice was incompetent and so was struck out

p. 2

Costs

The respondents' costs of this application shall be paid by the applicant.

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.

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.
p. 2Incompetent Notice of Appeal - mis-dating of decision appealed against
An order of dismissal would only lie if the matter was heard on merits.
p. 2Distinction between striking out and dismissal
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.
p. 3Final orders - striking out of the Notice of Appeal
The respondents’ costs of this application shall be paid by the applicant.
p. 3Costs of the application

Issues in the judgment

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minor

The coram headings name the judges without their full rank heading on separate lines, but the signatures identify them as Judges of Appeal; also the judgment header contains a typographical error ('PEAL AT NAIROBI').

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, "AKAMBA PUBLIC ROAD SERVICES LIMITED v FLORENCE MNYANZI ISANYA & 6 OTHERS [2007] KECA 339 (KLR)", Case Analysis (2007). Civil Application No. 161 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/339/eng@2007-05-18

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