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Court of AppealAllowedNot stated in the judgment

Benjo Super Stores Limited v Kenya National Highway Limited (Civil Application E072 of 2021) [2025] KECA 290 (KLR)

Court of Appeal of Kenya
21 February 2025
1,735 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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KeNHA's appeal collapsed because it never served the appeal documents on Benjo Super Stores, showing service deadlines in Kenyan appeals are fatal if missed.

What this practically means

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Executive summary

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This is a single judgment of a three-judge bench of the Court of Appeal at Mombasa, delivered on 21st February 2025 by Murgor, Laibuta and Ngenye-Macharia, JJA, allowing Benjo Super Stores Limited's application to strike out KeNHA's appeal. The underlying dispute arose from the impounding of the applicant's motor vehicle KCH 386V on 22nd December 2020 and an order to pay Kshs. 283,886 in overloading fees under the East African Community Vehicle Load Control Act, 2016 without a hearing. The High Court granted leave for judicial review on 25th January 2021 and, by ruling dated 15th April 2021, allowed the certiorari and mandamus orders as prayed, there being no response filed. KeNHA's application for stay was dismissed on 28th May 2021, the trial judge holding the intended appeal frivolous. KeNHA appealed; Benjo moved under rule 92 of the Court of Appeal Rules, 2022 to strike out the memorandum and record of appeal for want of service. The respondent did not appear and filed no reply. The Court found no evidence that the Notice of Appeal, Memorandum or Record of Appeal had been served within the periods prescribed by rules 77, 79 and 92, held that there was no competent appeal before it, held the thirty-day proviso to rule 86 inapplicable since no service had occurred, and struck out the appeal with costs to the applicant. The decision below was not disturbed; no separate opinions were filed and the bench was unanimous.

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 served the applicant with the Notice of Appeal, Memorandum of Appeal and Record of Appeal within the periods prescribed by the Court of Appeal Rules
  2. 2.Whether the appeal should be struck out for failure to take an essential step in the proceedings (service) within the prescribed time

Key legal issues

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01

Whether failure to serve the Notice of Appeal, Memorandum and Record of Appeal renders an appeal incompetent and liable to be struck out.

Holding

Yes. The Court found that no service had been demonstrated and struck out the appeal, holding there was no competent appeal before it.

Reasoning

Rules 77, 79 and 92 of the Court of Appeal Rules require lodgment of a notice of appeal within fourteen days, service of the notice on persons directly affected within seven days, and service of the memorandum and record of appeal within seven days of lodgment. The applicant learned of the record of appeal only through case management notices. The Court found no evidence of service in the stipulated periods, and since the thirty-day proviso to rule 86 is triggered only by service, it did not bar the application. The appeal was therefore struck out.

p. 4

Legal principles established

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  • Where an appellant fails to serve the Notice of Appeal, Memorandum of Appeal and Record of Appeal on the affected party within the prescribed time and there is no evidence of service, there is no competent appeal before the Court, and the appeal may be struck out under rule 86.
  • The thirty-day proviso to rule 86 limiting applications to strike out applies only where service of the Notice of Appeal or Record of Appeal has occurred; it does not bar an application where no service was effected at all.

Court orders

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  1. 1.The respondent's appeal against the rulings of the High Court dated 15th April 2021 and 28th May 2021 is struck out
  2. 2.Costs of the application to the applicant

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

Wrote the judgment

On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Rule 86 and rule 92 of the Court of Appeal Rules, 2022 (application to strike out an appeal)

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.

Given that there is no evidence that the applicant was served with the appeal in terms of the rules cited above, we find that there is no competent appeal before us.
p. 4Incompetence of appeal for failure to serve
Consequently, the respondent’s appeal against the rulings of the High Court dated 15th April 2021 and 28th May 2021 be and is hereby struck out with costs to the applicant. It is so ordered.
p. 4Final orders - striking out of appeal with costs

Issues in the judgment

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minor

The judgment describes the applicant Benjo Super Stores Limited as the 'applicant' in its own Motion but the Motion seeks striking out of the respondent's appeal, while the Notice of Motion is dated 6th July 2023 yet the applicant depones to learning of the appeal by email on 19th April 2022 - a chronological inconsistency on the face of the record.

minor

The judgment does not state the appeal number, the High Court case number, or the name of the trial judge, and no neutral citation is given.

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, "Benjo Super Stores Limited v Kenya National Highway Limited (Civil Application E072 of 2021) [2025] KECA 290 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/290/eng@2025-02-21

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