SAMSON MWAKITINDI & ANOTHER vs ERIC ISAYI SHALINGA & 3 OTHERS [1997] KECA 253 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a struck-out appeal is not the end of the road — you can restart the appeal if you act quickly and diligently.
What this practically means
#Executive summary
#Key legal issues
#Effect of striking out an appeal on the right to commence a fresh appeal
Striking out punishes the appellant's negligence in compiling the record but is no bar to restarting the appeal process; only good reason for extension of time need be shown
The court reasoned that striking out serves as punishment for negligence in compiling the record of appeal, not as a final determination on the merits. It noted established practice, citing two unreported rule 4 applications (Joseph Lima & 86 others v. Ann Merz and Commissioner of Lands v. Coastal Aquaculture) where time was extended after appeals were struck out. The respondents' contention that the applicants' fate was sealed was therefore rejected.
Whether sufficient grounds existed for extension of time
Yes - the application was filed with due dispatch, the applicants acted diligently, and no affidavit was filed to controvert their supporting evidence
The court weighed the respondents' complaints (non-service of the original notice within rule 76(1) time; omission of primary documents from the record) and found them relevant to competency but not weighty enough to refuse the discretionary relief. The decisive factors were promptness of the application and diligence, plus the absence of any replying affidavit from the respondents.
Whether the struck-out appeal's record could be reused
No - the prayer was refused because rule 85(2A), the basis of the striking out, precludes it
Counsel for the applicants sought to sever this prayer, but the court held it could not grant deeming relief inconsistent with rule 85(2A). The applicants were instead given a fresh opportunity to compile a compliant record within the extended time.
Legal principles established
#- Striking out of an appeal does not operate as res judicata to a subsequent appeal on the same or other grounds; a fresh appeal process may be commenced upon extension of time under rule 4
- Rule 4 confers an unfettered discretion with no conditions precedent, but the applicant must still show sufficient grounds for the extension
- The key considerations on such an application are absence of undue delay and diligence after the striking out
Court orders
#- 1.Extension of time by 7 days within which to file and serve a notice of appeal
- 2.Further extension of 30 days within which to lodge a record of appeal
- 3.Refusal of the prayer that the record of appeal of the struck-out appeal be deemed the record of appeal in the intended appeal, in view of rule 85(2A)
- 4.Costs of the application to be in the intended appeal
- On appeal from
- High Court of Kenya
- Civil Case No. 467 of 1986
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (unfettered discretion to extend time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SAMSON MWAKITINDI & ANOTHER vs ERIC ISAYI SHALINGA & 3 OTHERS [1997] KECA 253 (KLR)", Case Analysis (1997). Not stated in the judgment (Civil Application under rule 4, following Civil Appeal No. 94 of 1993). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/253/eng@1997-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.