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Court of AppealStruck OutCivil Appeal No. 129 of 1991· [1996] KECA 172 (KLR)

Moses Muriithi Githui v Edwin Hayanga Ohore [1996] KECA 172 (KLR)

Court of Appeal
9 February 1996
RKR.O. KwachASA.B. ShahALA.A. Lakha
183 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal filed five months late without permission, confirming that missing appeal deadlines without leave makes an appeal dead on arrival.

What this practically means

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Executive summary

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This short ruling of the Court of Appeal at Nairobi (Kwach, Shah and Lakha, JJ.A.) dealt with the competency of an appeal against a decree of the High Court of Kenya at Nairobi (Justice Tank) dated 26th June 1990 in H.C.C.C. No. 4685 of 1987. The appeal was filed on 22nd August 1991. The Certificate of Delay showed that the proceedings and judgment were ready on 22nd January 1991, so the last date for filing the appeal was 21st March 1991. The appeal was therefore filed five months out of time and without leave. The court held that in those circumstances the appeal was incompetent and struck it out. It made no order for costs, so each party bears its own costs. The ruling did not disturb the High Court's decree, which remains in effect; the decision below was neither affirmed on the merits nor reversed, as the appeal never proceeded to a hearing. The judgment contains no separately authored opinions, no cited authorities, and no cited statutes. Its binding significance for lower courts lies in the proposition that an appeal filed out of time without leave is incompetent and will be struck out.

Key legal issues

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01

Competency of an appeal filed out of time without leave

Holding

The appeal was filed five months after the expiry of the statutory period for filing, without leave, and was therefore incompetent and struck out.

Reasoning

The Certificate of Delay showed that proceedings and judgment were ready on 22nd January 1991, making 21st March 1991 the last date for filing the appeal. The appeal was filed on 22nd August 1991, five months out of time and without any extension of time having been granted. An appeal filed without leave beyond the prescribed period is incompetent, and the court struck it out, making no order as to costs.

p. 2

Legal principles established

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  • An appeal filed out of time without leave of the court is incompetent and liable to be struck out.

Court orders

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  1. 1.The appeal is struck out as incompetent
  2. 2.No order for costs
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 4685 of 1987
Jurisdiction invoked
Appeal against decree of the High Court under the Court of Appeal's appellate jurisdiction; no specific constitutional or statutory provision cited in the ruling.

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, "Moses Muriithi Githui v Edwin Hayanga Ohore [1996] KECA 172 (KLR)", Case Analysis (1996). Civil Appeal No. 129 of 1991. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/172/eng@1996-02-09

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