[1999] KECA 133 (KLR)
The Court held that the Notice of Appeal, being wrongly dated, was invalid and could not be amended as it is a primary document. Consequently, the appeal was incompetent and fatally defective. The Court agreed with the concession by the appellant's counsel and ordered the appeal struck out. The prior order for...
Source-derived case information.
- Citation
- [1999] KECA 133 (KLR)
- Parties
- Appellant: Jacaranda Hotel Limited; Respondent: Wildlife Lodges Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 228 of 1999
- Procedural Posture
- Civil Appeal / Order on Preliminary Objection Regarding Validity of Notice of Appeal
- Outcome
- Appeal struck out as incompetent due to invalid notice of appeal; consolidation order vacated; no order as to costs.
- Judges
- E Owuor
- Legal Topics
- Notice of Appeal, Appeal Incompetence, Procedural Defects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacaranda Hotel Limited
Appellant
Wildlife Lodges Limited
Respondent
Procedural Posture
Civil Appeal / Order on Preliminary Objection Regarding Validity of Notice of Appeal
Legal Issues
- 1 Whether a notice of appeal that is wrongly dated is a valid primary document.
- 2 Whether an appeal based on an invalid notice of appeal is competent.
Ratio Decidendi
The Court held that the Notice of Appeal, being wrongly dated, was invalid and could not be amended as it is a primary document. Consequently, the appeal was incompetent and fatally defective. The Court agreed with the concession by the appellant's counsel and ordered the appeal struck out. The prior order for consolidation of this appeal with another was vacated, and the other appeal was to proceed separately. No order as to costs was made.
Court Disposition
Appeal struck out as incompetent due to invalid notice of appeal; consolidation order vacated; no order as to costs.
Orders
- The appeal is struck out as incompetent.
- No order as to costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (CORAM: OMOLO, TUNOI & OWUOR, JJ.A.) CIVIL APPEAL NO. 228 OF 1999 BETWEEN
JACARANDA HOTEL LIMITED ............................ APPELLANT AND WILDLIFE LODGES LIMITED ........................... RESPONDENT
(Appeal from the Ruling and Decree of the High Court of Kenya at Nairobi (Oguk, J.) dated 28th October, 1999 in
H.C.C.C. NO. 839 OF 1999) ******************* ORDER OF THE COURT
The counsel for the appellant in C.A. NO. 228/99 has brought to our attention the fact that the Notice of Appeal is wrongly dated. He admits that, it being a primary document, it is not capable of being amended; and, consequently it being invalid, the appeal is incompetent. We agree. The appeal therefore is fatally defective and is ordered struck out. We make no order as to costs.
It follows therefore that the order for consolidation made earlier on cannot stand and is vacated. C.A. No. 242/99 shall be heard separately.
Made at Nairobi this 1st day of December, 1999.
R. S. C. OMOLO
...............
JUDGE OF APPEAL
P. K. TUNOI
...............
JUDGE OF APPEAL
E. OWUOR
...............
JUDGE OF APPEAL