Augustino Mwai v Okumu Ndede [1995] KECA 66 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an entire appeal because the lawyers missed deadlines for serving appeal papers — missing appeal deadlines can kill your case.
What this practically means
#Executive summary
#Key legal issues
#Consequences of non-compliance with time limits for service of the Notice of Appeal
Where the Notice of Appeal is served out of time and no application to extend time has been made, the appeal is liable to be struck out.
The appellants conceded that the Notice of Appeal was served out of time and that no application for extension of time had been made. The court treated this non-compliance, together with the late and unauthorised posting of the record of appeal, as incurable defects justifying striking out the appeal on the respondent's application.
Service of the record of appeal without leave and out of time
Posting the record of appeal to the respondent out of time and without leave does not constitute valid service under the applicable rules.
The court noted the concession that the respondent was never served with the record of appeal within the prescribed time and that, on 19 October 1995, the record was merely posted to the respondent without leave. The court held that this mode of service 'will not do', reinforcing that strict compliance with appellate procedural rules is required.
Legal principles established
#- Service of the Notice of Appeal out of time, without an extension of time, is fatal to an appeal and justifies striking it out.
- Posting the record of appeal to a respondent out of time and without leave does not comply with the rules on service of the record of appeal.
Court orders
#- 1.The application to strike out the appeal is allowed
- 2.The appeal is struck out
- 3.The respondent is awarded the costs of the application
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 5478 of 1991
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the High Court (Civil Appeal), on a striking-out application under the Court of Appeal procedural rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Augustino Mwai v Okumu Ndede [1995] KECA 66 (KLR)", Case Analysis (1995). Civil Appeal No. 42 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/66/eng@1995-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.