[2000] KECA 6 (KLR)

TRIMBORN AGRICULTURAL ENGINEERING LIMITED..…....…APPELLANT

AND

DAVID NJOROGE KABAIKO.................................................1ST RESPONDENT

KENYA SHIELD SECURITY LIMITED............................. 2ND RESPONDENT

(An application in an appeal from the judgment of the High Court of Kenyaat Nakuru (Lady Justice Ondeyo) dated 20th June, 1996

in

H.C.C.CNo.395 of l992)

****************

RULING OF OWUOR. J.A

Kenya Shield Security Ltd., the applicant in this Notice of motion is the 2ndrespondent in Civil Appeal No. 274 of 1998 filed in this Court on 30th November, 1998. The appeal is against the judgment of Ondeyo J. delivered on 20th June, 1996. The motion brought under rules 9, 42 and 80 of the Court of AppealRules and filed on 21st February, 2000 seeks an order to strike out the appeal on thegrounds that:- The Notice of Appeal was filed out of time, the record is incompleteand that essential steps in the proceedings have not been taken or have not been takenwithin the prescribed time.

1In the short affidavit which supported the Notice of motion the applicant statesinter alia:-

"3. That the decision against which the said appeal is preferredwas delivered on 20th June, 1996.

4. That the Notice of appeal was presented on 16th December,1997.

5. I verily believe that the appeal was presented five hundredand thirty-one (531) days late.

6. No extension of time has been filed and /or allowed by thisHonourable Court.

7. That consequently no valid Notice of appeal is included inthe record of appeal.

8. Following par 4, 5, 6 and 7 above I verily believe thatessential steps in the proceedings have not been taken orhave not been taken within prescribed time".

In objecting to the application, counsel for the respondent filed a replyingaffidavit in which he complained amongst other things that the applicant had waitedtill too late in the day before making this application. That might be true but he madeno resistance and was accordingly heard in the application. The substance of hisreplying affidavit was that immediately after judgment in Nakuru H.C.C.C No. 395 of1992 was delivered on 20th June, 1996, he drew and filed a Notice of Appeal on 25thJune, 1996. He discovered that the Notice of Appeal was defective in that it had leftout the name of the applicant herein. Subsequently, on 26th February, 1997 he filedCivil Application No. Nai. 73 of 1997 in this Court for leave to file a proper Notice ofAppeal out of time.

2

The actual order sought in that application was that:

"a. The time allowed for lodging and serving a Notice ofappeal be extended to enable the applicant to lodge andserve a proper Notice of appeal with the name of all theparties to the intended appeal".

By counsel's own admission, that application was never to be heard. He

withdrew the application with the knowledge and consent of Mr. Kagucia, counsel for

the respondent. He thereafter filed and yet another application in the superior court on

30th September, 1997 under the provision of section 7 of the Appellate Jurisdiction

Act and section 3A of the Civil Procedure Act. He sought for time for lodging and

serving a Notice of Appeal to be extended to enable him to lodge and serve a proper

Notice of Appeal with the names of all the parties. That application was heard and the court granted the respondent fourteen days in which to file the Notice of Appeal andseven days from the date of filing of the Notice of Appeal for serving of the saidNotice of Appeal. The order was given on 5th December, 1997 and according to thecertificate of delay, proceedings were given to the respondent on 13th October, 1998.

However, the respondent filed the Notice of Appeal within eleven days from the

date of the order. The applicant did not appeal against that order. He cannot therefore

be heard to argue that the Notice of Appeal was filed out of time. The same having

been filed within the period of the order of the superior court exercising its jurisdiction

under section 7 of the Appellate Jurisdiction Act, Chapter 5 of the Laws of Kenya.

If I understood Mr. Kagucia properly, his contention is not to the effect that theNotice of Appeal which is contained in the record of appeal is defective for lack ofextension of time for filing the same. His objection is that, there cannot be two Notices

3

of Appeal as is the case in the present appeal. By the applicant's own admission bothin his affidavit and in the submissions in Court, the Notice of Appeal filed on 25thJune, 1996 and which he contends was defective, although not contained in the recordof this appeal it is in existence and is a primary document in terms of rule 85(I)(j).Upon realising that it was defective he never had the same either struck out in termsof rule 80 or declared as having been withdrawn in accordance with rule 82. Thatbeing the case therefore, that Notice of Appeal was a valid Notice of Appeal andtherefore a primary document and hence a document to be included in the record ofappeal. So at the time the application for leave and extension of time was beingcanvassed in the superior court there was in essence and in fact a subsisting Notice ofAppeal, though defective according to the respondent. The respondent therefore couldnot have began to act as though there was no Notice of Appeal until he had caused theprevious Notice of Appeal to be withdrawn or struck out.

In that regard, the respondent could not have embarked on the process of putting

his house in order when this other Notice of Appeal was still in existence, be it in the

superior court or in this Court under rule 4 of the Rules of this Court. In the result the

proceedings before the superior court in as far as extending time for filing and yet

another Notice of Appeal were proceedings in futility. They were null and void and

any purported order emanating from them cannot entitle the respondent to file another

fresh Notice of Appeal. The clear principle being that one cannot;

"file a fresh Notice of Appeal until the original one has ceased toexist. To clear the deck for an application for extension of time tofile a fresh Notice of Appeal, the original Notice of Appeal musteither be struck out or deemed to have being withdrawn under rule82 of the Rules. See Attorney Generalvs Kamlesh MansukhlalDamji Pattni and 2 others C.A No. 59 of 1999”.

4

I am therefore in agreement with Mr. Kagucia in that not only is the Notice ofAppeal contained in the record of appeal null and void but also that the record ofappeal as it stands does not contain the original Notice of Appeal filed on 25th of June,1996 as it must. The record of appeal is therefore defective hence rendering the appealitself defective. In the result, I would grant the motion and strike out the appealwith costs.

Dated and delivered at Nairobi this………..day of……......... 2000.

E. OWUOR

…………………………………………

.JUDGE OF APPEAL

5

IN THE COURT OP APPEALAT NAKURU

CORAM: GICHERU, SHAH & OWUOR, JJ.A

CIVIL APPEAL(APPLICATION) NO. 274 OF 1998

BETWEEN

TRIMBORN AGRICULTURAL ENGINEERING LIMITED...... APPELLANT

AND

DAVID NJOROGE KABAIKO

KENYA SHIELD SECURITY LIMITED............................... RESPONDENTS

(An appeal from the judgment of the High Court of Kenyaat Nakuru (Lady Justice S.C. Ondeyo) dated 20th June,1999

in

H.C.C.C. NO. 395 OF 1992)

*******************

RULING OF SHAH, J.A.

This application is filed in this appeal, by the secondrespondent, seeking an order to strike out the appeal itself on thegrounds that the notice of appeal was filed out of time, the recordis incomplete and essential steps have not been taken within theprescribed time.

The decree of the superior court, appealed against, is dated20th June, 1996. In this Ruling I will refer to the applicant asthe second respondent and the respondent as the appellant.

The appellant lodged his first notice of appeal on the 25thday of June, 1996 and applied for copies of proceedings andjudgment of the superior court on the same day. Both theseessential steps were taken in time. The problem for the appellantarose, however, as the notice of appeal lodged on 25th day of June,

1

1996, was defective. That notice of appeal in its heading did not

include the names of two of the parties to the suit in the superior

court. One of them is Kenya Shield Security Limitedwho was the

first third party in the suit. The other one is Stephen Kiraigo

trading as Hot Guards Security Services limit edwho was the second

third party in the suit.

It is a matter of regret that the judgment of the superior

court does not set out all names of the parties in the superior

court. Ideally the heading should have read:

In the High Court of Kenya at NakuruCivil Case No. 395 of 1992Between

David Njoroge Kabaiko................ Plaintiff

andTrimborn Agricultural Engineering Ltd....Defendant

Kenya Shield Security Limited... 1st Third Party

Stephen Kariago T/A Hot Guards

Services Limited................... 2nd Third Party

The courts below should see to it that all the names of theparties to the suit are properly included in the title of the suitin the judgments or rulings so that there can be no room for doubt.However, it is the duty of the intended appellant to see to itthat all parties directly affected by the judgment are served witha properly headed notice of appeal.

The Notice of Appeal first lodged by the appellant is

reproduced hereunder:-

“ In the Court of Appeal

At Nakuru

David Njoroge Kabaiko Plaintiff

andTrimborn AgriculturalEngineering Limited............. Defendant

2

NOTICE OF APPEAL

TAKE NOTICE that the Defendant, above-named beingdissatisfied with the decision of the HonourableLady Justice Ondeyo given at Nakuru on the 20th dayof June, 1996 intends to appeal to the Kenya Courtof Appeal against the whole of the said decision.

The address for service of the appellant iscare of M/S Bowry Maraga & Company, advocates, Belpar House, Court Road, P.O. Box 671, Nakuru.

It is intended to serve the copies of thisnotice upon:-

1. A. Otieno, 2. M/S Kagachia & Co.

Advocate, Advocate,

Nakuru Nakuru

Dated at Nakuru this 25th day of June, 1996.

SIGNED

Bowry Maraga & CompanyAdvocates for the Defendant

Drawn & Filed by:-

Bowry Maraga & Co. AdvocatesP.O. Box 671, NAKURU

TO: The Deputy Registrar, High Court of Kenya, P.O. Box 61, NAKURU

Lodged at Nakuru this 25th day of June, 1996.

SIGNED

Deputy Registrar, High Court of Kenya, NAKURU"

This notice of appeal is deficient in three material aspects.

As pointed out by me earlier, names of the first and second third

parities are not included in the notice of appeal. Ideally these

names ought to be included so that they would become respondents to

3

the appeal as they are parties directly affected by the judgment ofthe superior court.

It has been held time and again that a notice of appeal is aprimary document. It gives jurisdiction to this Court. Theadvocates for the appellant realized the errors contained in thefirst notice of appeal, reproduced above.

Upon realizing their error, the advocates moved this Court foran extension of time to lodge a fresh but correct notice of appealout of time. That application came for hearing before Cockar (thethen Chief Justice) , sitting as a single Judge of this Court and he'advised' the appellant's advocates that they ought to have firstmoved the High Court for such extension. The appellant's advocatesmoved the High Court, as advised. The High Court (Ondeyo, J) allowed the application despite objections by Mr. Kagucia for thefirst third party. The advocate for the plaintiff did not object.It is not clear if the second third party was before the HighCourt. At any rate it appears he was not before the High Court atthat stage. The application before the High Court was broughtunder Section 7 of the Appellate Jurisdiction Act (the Act). Theapplication was allowed, as a result of which the appellant lodgeda fresh notice of appeal on the 16th December, 1997, that is priorto the lodgment of the record of appeal. The appeal itself, waslodged on 30th November, 1998 and the record of appeal includes thefresh notice of appeal.

Therefore, effectively, the position is that whilst the firstnotice of appeal was not yet struck out this appeal was lodged as

4

being based on the second notice of appeal.

The powers of the superior court to enlarge the time for

lodging a notice of appeal out of time have been well defined by

now. This court in a recent decision delivered in the case of

Peter Njoroqe Mairo vs. Francis Gicharu Kariri & Another, Civil

Appeal (Application) No. 186 of 1999, (unreported), said:

"In our view section 7, above, should be given aconstruction which would obviate ridiculous result.The intention of the legislature in enactingSeciton 7, above, clearly appears to us to be thatit can only be used and more specifically the veryfirst time the intending appellant manifests hisintention to appeal. It is for this reason that weagree with the remarks of Bosire Ag., JA (as hethem was) in the case of Edward Allan Robinson & 2others vs. Philip Gikaria Muthami, (CivilApplication No. Nai. 187 of 1997) (unreported), where he remarked, in pertinent part, thus:

'Section 7, above was not, in my view, intended to cover appellants whose appealshave been struck out for incompetence and whodesire to file competent appeals. Once alitigant files a valid notice of appeal andhad obtained the necessary leave to appeal, where necessary, the matter respecting whichan appeal is intended, is thereby removed fromthe jurisdiction of the superior court, exceptfor limited matters in which specificjurisdiction has been conferred on it to dealwith. Section 7, above, presupposes that anintending appellant has not taken any othersteps in pursuance of that appeal.'

Besides, from a careful reading of the provisionsof rules 74 and 81 of the Rules of this Court, itis clear that they are intended to deal with thefiling of appeals for the first time. Thejurisdiction to restart the appellate procedures isnot donated by Section 7, above, but by rule 4 ofthe rules. The rule, in effect, empowers the courtto reinstate the struck out appeal, while Section7, above, empowers the High Court to, in effect, assist a litigant in distress who otherwise wouldnot seek help of either court for any interimrelief before he lodged his appeal for the first

time."

In the Peter Njoroge Mairo case this Court also decided thatextension of time to lodge a notice of appeal granted by the HighCourt does not automatically extend the time to lodge the record ofappeal, and that therefore that appeal, as lodged, was incompetent.

The question that arises here is: what happens when a recordof appeal is not yet lodged and the time to lodge the notice ofappeal is extended by the High Court and whilst the first defectivenotice of appeal has not been struck out?

The answer to the question posed by me is that the firstnotice of appeal, until struck out by this Court, on an applicationmade to it, remains and the High Court has therefore nojurisdiction to extend the time to lodge a fresh notice of appeal.

I said in the case of Gabriel Kiqi and others vs. Kimotho

Mwaura & another, Civil Application No. Nai. 197 of 1997

(unreported),:

"But I must revert to section 7 of the Act. Thatsection in my view gives discreditionary powers tothe High Court to allow extension of time to file anotice of appeal when there is as yet nothingbefore this Court. It is in this particular aspectthat I agree with Bosire Ag. J.A. in the Robinson &Others vs. Muthami application (supra)"

The situation here is that there is a defective notice of

appeal still on record. It has not been struck out pursuant to an

application made in that behalf. So long as that notice of appeal

remains, the High Court has no jurisdiction to extend time to lodge

a fresh notice of appeal. Rule 75 of the Rules of this Court shows

that the notice of appeal lodged in the superior court is sent to

6

this court, at its appropriate registry. Omolo, JA sitting as a

single Judge of this Court said in the case of Dolphin Palms

Limited vs. Al-Nasibh Trading Co. Ltd. & Others, Civil Application

No. 112 of 1999 (unreported):

"The prayer is that I should extend time to enablethe applicant to file a fresh notice of appeal.There is, in fact a notice of appeal on record.Whether or not that notice is a valid one cannot bea decision to be made by a single Judge; that isthe province of a full bench. Mrs. Gudka at firsttold me that I should treat the notice of appealbefore me to be deemed to have been withdrawnpursuant to rule 82. I do not know that a singleJudge of the Court can validly deem a notice ofappeal to have been withdrawn and then proceed toact as though there was no notice of appeal."

What Omolo, JA said in the Dolphin Palms case is germane here, even more so. There he declined to deem, as having been withdrawn, a notice of appeal already lodged, until such time it was struckout by full bench on an application to it. If a single Judge ofthis Court cannot so deem a notice of appeal to be withdrawn, afortiori, a High Court Judge cannot do so.

The Ruling of Omolo, JA was the subject of reference to full

bench under rule 54(2) of the Rules of this Court. The full bench

said:

"As rightly pointed out by Mr. Khatib, for thefirst respondent, the court must be moved to makethe order declaring a notice of appeal "deemed tohave been withdrawn". Rule 82, in pertinent part, provides that:

'If a party who had lodged a notice of appealfails to institute an appeal within theappointed time, (a) he shall be deemed to havewithdrawn his notice of appeal and shall,unless the court otherwise orders, be liableto pay the costs arising therefrom of any ofpersons on whom the notice of appeal wasserved'.

7

We concede that there is no express provisionrequiring a party to move the Court in that regard,however, a careful reading of rule 82 clearlyreveals that such an application is necessary. Thephrase "unless the court otherwise orders-" clearlyshows that a court order is necessary and suchorder can only be validly made by a full bench inan application brought under rule 80 of the Courtof Appeal Rules. That is the conclusion the singleJudge came to. We have no basis upon which tofault him on that. The reference therefore failsand is dismissed with costs".

The appeal sought to be struck out is incompetent because theextension of time to lodge the second notice out of time granted bythe High Court was without jurisdiction. Also the first notice ofappeal was incompetent for non-inclusion of the names of the twoaffected parties already referred to by me. I do not know if thefirst notice of appeal was served on the second third party. Itought to have been served. However it is incompetent and invalidfor non-inclusion of the first and second third parties' namestherein.

There is also the factor of the second third party not beingserved with the notice of appeal. The reason why he was not soserved is not known to me. However, it is not for the intendingappellant to decide whether or not to serve a notice of appeal ona party in the suit. Such intending appellant ought to, withinseven days after lodging the notice of appeal, apply to the Courtfor direction that a party need not be served with a copy of thenotice of appeal. See rule 76(1) of the Rules of this Court. Itis for the appellant to decide whether or not to seek extension oftime limited by the proviso to rule 76(1).

Although Mr. Kagucia's application is based on the grounds as

8

shown in the application itself, his argument, in main, turned onthe issue as to whether or not the High Court had jurisdiction togrant the extension of time as sought. He had raised that issuebefore the High Court. He ought to have, in those circumstances, appealed, with leave, against the ruling of the High Court. He didnot do so and instead by a side-wind method argued the pointbefore this Court.

I would therefore strike out Civil Appeal No. 274 of 1998 noton the grounds advanced by Mr. Kagucia but on the grounds alreadypropounded by me. I would also strike out the first notice ofappeal as it is admittedly defective. I would make noorder as tocosts.

Dated and delivered at Nairobi this 17th day of March, 2000.

A.B. SHAH

...............

JUDGE OF APPEAL

9

IN THE COURT OF APPEALAT NAKURU

(Coram: Gicheru, Shah & Owuor, JJ.A.)

CIVIL APPEAL (APPLICATION) NO. 274 OF 1998

BETWEEN

TRIMBORN AGRICULTURAL ENGINEERING LIMITED........ APPELLANT

AND

DAVID NJOROGE KABAIKO........................................... 1ST RESPONDENT

KENYA SHIELD SECURITY LIMITE.............................. 2ND RESPONDENT

(An application in an appeal from the judgment of the HighCourt of Kenya at Nakuru (Lady Justice Ondeyo) dated, 2 0th June,1996

in

H.C.C.C. NO. 395 OF 1992)

RULING OF GICHERU, J.A.:

By a Notice of Motion lodged in this Court on 21st February, 2000, Kenya Shield Security Limited, the second respondent in thisappeal, sought to have the appellant's appeal struck out for thereasons that the Notice of Appeal was filed out of time; that therecord of appeal was incomplete; and that essential steps in theproceedings had not been taken or had not been taken within theprescribed time. That Notice of Motion was made under rules 9, 42and 80 of the Court of Appeal Rules.The basis upon which thisNotice of Motion was made was that the decree appealed from wasgiven on 20th June, 1996 and the Notice of Appeal upon which theappellant's appeal is commenced was lodged in the superior court on16th December, 1997 which, according to counsel for the second

1

respondent, Mr. Kagucia, was 531 days out of time. To that endtherefore, according to counsel, no valid Notice of Appeal was inthe appellant's record of appeal with the result that an essentialstep in the proceedings in the appellant's appeal had not beentaken or had not been taken within the prescribed time.

In the replying affidavit of counsel for the appellant, Mr.Maraga, in opposition to the second respondent's Notice of Motion,a photostat copy of a Notice of Appeal drawn by counsel for theappellant dated and lodged in the superior court on 25th June, 1996was annexed thereto. On 21st June, 1996 counsel for the appellanthad applied in writing for a copy of the proceedings and judgmentin connection with the decree in respect of which the appellantintended to appeal and a copy of that application was served oncounsel for the second respondent. The aforesaid Notice of Appealomitted the name of the second respondent although it was clearlyindicated on the body of that Notice of Appeal that the same was tobe served and indeed was served on the second respondent.Realising that the second respondent could not be joined as a partyto the appellant's intended appeal by an amendment to the Notice ofappeal in question, counsel for the appellant applied to thesuperior court under section 7 of" the Appellate Jurisdiction Act, Chapter 5 of the Laws of Kenya for extension of time within whichto lodge a proper Notice of Appeal having the names of all theparties to the intended appeal. That application came beforeOndeyo, J. who extended the time of lodging the Notice of appeal by14 days from the date of her ruling in respect thereof - 5th

2

December, 1997 - and a fresh Notice of Appeal was lodged in thesuperior court on 16th December, 1997. From the Certificate ofDelay given by the superior court on 4th November, 1998, a copy ofthe proceedings and a certified copy of the judgment applied for bycounsel for the appellant on 21st June, 1996 as is indicated abovewere supplied to him on 13th October, 1998. On 30th November, 1998the appellant's appeal was lodged in this Court.

The existence of the original Notice of Appeal lodged in thesuperior court by counsel for the appellant on 25th June, 1996 wasdeponed to in the affidavit of counsel for the appellant in supportof the appellant's application in the superior court for theextension of time within which to lodge a fresh Notice of appeal.Yet, that notwithstanding, that court proceeded to extend the timesought, the result of which was the lodging of a fresh Notice ofAppeal so that two Notices of Appeal, the original of which wasdefective, were lodged in the superior court in respect of theappellant's appeal. The very existence of the original defectiveNotice of Appeal should have disentitled the appellant theextension of time it sought in the superior court to lodge anotherNotice of Appeal. This was not to be so with the result thatalthough a copy of the original Notice of Appeal is not part of theappellant's record of appeal, there are in existence two Notices ofAppeal in respect of the appellant's appeal one of which isdefective - thanks to the forthrightness of counsel for theappe11ant, Mr. Maraga.

A Notice of Appeal is a primary document in relation to an

3

appeal to this Court. Indeed, it is the first document in

connection therewith. This Court has in the past held that a

primary document cannot lend itself to an amendment - see the case

of Parsi Anjumani v. Mushin Abdulkarim All, Civil Application NO.

NAI. 328 of 1998 (unreported).As I have indicated in this ruling,

before the extension of time within which to lodge a Notice of

appeal by the superior court on 5th December, 1997 and the

subsequent lodging of the same in that court on 16th December, 1997

by the appellant, there was in existence another Notice of appeal

lodged by the appellant in the same court within the prescribed

time. Although that Notice of Appeal was defective and could not

be amended, it was a legitimate Notice of Appeal in regard to the

appellant's appeal and as long as it subsisted, any subsequent

extension of time to lodge another Notice of Appeal and the lodging

of such Notice of Appeal in the superior court in respect of the

said appeal was null and void. Such was the status of the

appellant's Notice of Appeal lodged in the superior court on 16th

December, 1997 subsequent to the extension of time by that court

within which to lodge the same. It is the only Notice of Appeal in

the appellant's record of appeal. The original Notice of Appeal,

though defective is not part of the record of appeal. The second

respondent is therefore right that the appellant's record of appeal

is incomplete as a primary document - a copy of the original

Notice of Appeal - does not form part of the record. Consequently,

the appellant's record of appeal is fatally defective rendering its

appeal incompetent. I would therefore strike out the said appeal

4

but with no order as to costs in view of the candidness of counsel for the appellant - Mr. Maraga. As Shah, J.A. agrees that the appellant's appeal should be struck out but with no order as to costs, there will be a majority decision of the Court in these terms.

Dated and delivered at Nairobi this 17th day of March, 2000.

J.E. GICHERU

..........................................

JUDGE OF APPEAL

5