Gichuki v Nangurai [1984] KECA 15 (KLR)
The bottom line
#The Court of Appeal dismissed a beneficiary's attempt to strike out a notice of appeal because he had not formally joined the appeal, costing him money.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of a non-party beneficiary to apply to strike out a notice of appeal
The applicant, as beneficiary or assignee of the High Court judgment but not a party to the appeal, lacked standing to bring the striking-out application because he had not applied in proper form to be joined and had no leave to appear.
Although the applicant had an interest in the underlying judgment and had appeared at the stay application without objection, the court held that standing in inter partes litigation cannot be conferred by the parties' consent. Madan JA had earlier suggested an application to be joined; the informal application under rule 76(1) was dealt with de bene esse only. Without formal joinder, the applicant had no interest in the appeal's prosecution.
Whether the respondent's delay warranted striking out the notice of appeal
The court did not reach the merits of the striking-out application, dismissing it on standing grounds while observing the procedural route the respondent could take to remedy the incomplete proceedings.
The court accepted that the respondent had not filed his appeal within the prescribed time and had not prosecuted it expeditiously as undertaken in the consent order. However, since the applicant lacked standing, the court declined to strike out the notice, and instead outlined practical steps (photocopying imperfect pages, certification) by which the respondent could proceed.
Legal principles established
#- A person served with a notice of appeal may apply to the Court of Appeal to strike it out on the ground that an essential step in the proceedings has not been taken or not taken within the prescribed time.
- The requirement of locus standi is applied more liberally in applications for prerogative orders than in inter partes proceedings, but it cannot be overcome by the consent of the parties.
- A person who is not a party to an appeal, and who has not been joined or given leave to appear, has no interest in whether the appeal is filed in time or prosecuted expeditiously, and cannot move to strike it out.
Court orders
#- 1.The application to strike out the notice of appeal was dismissed
- 2.The applicant must pay the costs of the application
- On appeal from
- High Court
- Nairobi High Court Civil Suit 1038 of 1974
- Jurisdiction invoked
- Rules 42, 80 and 82(a) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichuki v Nangurai [1984] KECA 15 (KLR)", Case Analysis (1984). Civil Application No NAI 25 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/15/eng@1984-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.