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Court of AppealAllowedCivil Application No. 64 of 2019

Hanos [Kenya] Limited v Dhiren Mohalal Shah [2021] KECA 652 (KLR)

Court of Appeal
23 April 2021
RNR. N. NambuyeASAsike-MakhandiaSKS. ole Kantai
449 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 an appeal because its foundational Notice of Appeal had already been struck out — no foundation, no appeal.

What this practically means

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Executive summary

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This was a notice of motion dated 19th July 2019 by Hanos [Kenya] Limited, the applicant, seeking striking out of the respondent Dhiren Mohalal Shah's appeal filed on 20th June 2019 against the judgment of Yano, J of the Environment & Land Court at Mombasa dated 18th October 2018 in Mombasa ELC No. 52 of 2016. The motion, brought under Rules 84 and 87(1)(h), (i), (j) and (k) of the Court of Appeal Rules, complained that the Record of Appeal lacked a duly lodged Notice of Appeal, a certified copy of the decree and an order granting leave to appeal, and that the appeal was an abuse of process because a striking-out motion against the underlying Notice of Appeal dated 22nd October 2018 was still pending. The respondent opposed through a replying affidavit sworn on 22nd October 2020. The court declined to interrogate the merits of the grounds raised, because one of the grounds referenced Civil Application No. 110 of 2018, which had since been heard inter partes and determined, with the Notice of Appeal dated 22nd October 2018 struck out. That notice was the foundation of the respondent's appeal; with the foundation removed, the appeal was incompetent and liable to be struck out. The application was accordingly allowed, the appeal filed on 20th June 2019 was struck out, and costs were awarded to the applicant. The ruling was delivered at Nairobi on 23rd April 2021 by Nambuye, Asike-Makhandia and ole Kantai, JJA.

Questions the Court framed

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

  1. 1.Whether the respondent's appeal filed on 20th June 2019 should be struck out for failure to take essential steps under the Court of Appeal Rules and as an abuse of process
  2. 2.Whether the appeal is competent given that the underlying Notice of Appeal dated 22nd October 2018 had already been struck out in Civil Application No. 110 of 2018

Key legal issues

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01

Competence of an appeal founded on a Notice of Appeal already struck out

Holding

The appeal was struck out without going into the merits of the striking-out application because the Notice of Appeal underpinning it had already been struck out in Civil Application No. 110 of 2018, rendering the appeal incompetent.

Reasoning

The court noted that the applicant's own application relied on the pending motion in Civil Application No. 110 of 2018. That application had since been heard inter partes and the Notice of Appeal dated 22nd October 2018 was struck out. Since that notice was the foundation of the present appeal, the appeal had no leg to stand on and was incompetent and liable to be struck out, making determination of the other grounds unnecessary.

p. 1

Legal principles established

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  • An appeal whose foundational Notice of Appeal has been struck out is incompetent and must itself be struck out

Court orders

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  1. 1.The application dated 19th July 2019 is allowed
  2. 2.The respondent's appeal filed on 20th June 2019 is struck out
  3. 3.Costs of the application to the applicant

The bench

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

RN
majority
AS
majority
SK
majority
On appeal from
Environment & Land Court at Mombasa
Mombasa ELC No. 52 of 2016 (Formerly Misc. Civil Application No. 667 OS of 2009)
Jurisdiction invoked
Rules 84 and 87(1), (h), (i), (j) and (k) of the Court of Appeal Rules

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 foundation having been removed, the appeal stands on quicksand. It is in fact incompetent and liable to be struck out.
p. 1Incompetence of appeal where the Notice of Appeal has been struck out
Accordingly the application is allowed with the consequence that the respondent’s appeal filed on 20 th June 2019 be and is hereby struck out with costs to the applicant.
p. 2Final orders - striking out of the appeal with costs

Issues in the judgment

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minor

The coram states the court is sitting at Mombasa but the delivery clause states the ruling was dated and delivered 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, "Hanos [Kenya] Limited v Dhiren Mohalal Shah [2021] KECA 652 (KLR)", Case Analysis (2021). Civil Application No. 64 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/652/eng@2021-04-23

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