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Court of AppealStruck OutCivil Appeal No. 26 of 1997

I.W. Waweru t/a Wathiomo Safaris & another v Fredrick J.P. Arodi & another [1998] KECA 65 (KLR)

Court of Appeal of Kenya
25 March 1998
ZCZ.R. ChesoniJGJ.E. GicheruROR.S.C. Omolo
252 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal filed too late, confirming you must appeal within 60 days of proceedings being ready or get permission first.

What this practically means

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Executive summary

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This short ruling of the Court of Appeal at Kisumu (Chesoni CJ, Gicheru and Omolo JJA) dealt with an appeal arising from a judgment of the High Court at Kisumu (Wambilyangah J) dated 3rd July 1996 in H.C.C.C. No. 242 of 1990. The Notice of Appeal was filed on 8th July 1996. The respondents, through Mr Miruka Owuor, demonstrated with documentary evidence that the proceedings and judgment were ready by 22nd July 1996, when certified copies were obtained, although the Certificate of Delay indicated the proceedings were ready by 25th September 1996. The court held that the appeal was due for filing within 60 days of the date the proceedings were ready, and that on either computation the appeal had been filed way out of time, rendering it incompetent. No leave to extend time had been applied for. The court therefore struck out the appeal in terms of Rule 80 of the Court of Appeal Rules and awarded the costs of the application to the applicant (respondent). The ruling is a single judgment of the whole court with no separate opinions or dissents. Its binding proposition for lower courts is that an appeal filed out of time, without leave to extend time, is incompetent and liable to be struck out under Rule 80, and that the 60-day period runs from the date the proceedings were ready.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal was filed within the prescribed time, taking into account the date the proceedings were ready as shown by the Certificate of Delay
  2. 2.Whether the appeal, having been filed out of time without leave to extend time, was competent

Key legal issues

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01

Competence of an appeal filed out of time

Holding

The appeal was incompetent because it was filed outside the 60-day period allowed from the date the proceedings were ready, and no extension of time had been sought or granted.

Reasoning

The court compared the date of delivery of the judgment (3rd July 1996) and the filing of the Notice of Appeal (8th July 1996) with the dates on which the proceedings were ready - 22nd July 1996 per the appellant's documentary evidence, or 25th September 1996 per the Certificate of Delay. On either date, the 60-day period for filing the appeal had expired before the appeal was lodged. Since no leave to extend time had been applied for, the appeal was incompetent and was struck out under Rule 80.

p. 2

Legal principles established

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  • An appeal filed out of time without leave to extend time is incompetent and liable to be struck out under Rule 80 of the Court of Appeal Rules.

Court orders

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  1. 1.The appeal was struck out in terms of Rule 80 of the Court of Appeal Rules
  2. 2.Costs of the application were awarded to the applicant (respondent)

The bench

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One judgment of the whole court — no separate or dissenting opinions.

ZC
majority
JG
majority
RO
majority
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 242 of 1990
Jurisdiction invoked
Court of Appeal Rules, Rule 80 (appeal struck out as incompetent for being filed out of time)

Relief refused

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Leave to extend time for filing the appeal out of time

No application for extension of time had been made, and the appeal was filed way out of time on any available computation of when the proceedings were ready

p. 2

Costs

Costs of the application to the applicant (respondent).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Whichever date is taken this appeal was filed way out of time and is therefore incompetent. No leave to extend time for filing it has been applied for.
p. 2Incompetence of appeal filed out of time without extension of leave
We order the said appeal to be struck out in terms of Rule 80 of the Court of Appeal Rules with costs of the application to the applicant.
p. 2Final orders - striking out and costs

Issues in the judgment

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minor

The coram heading describes Chesoni as Chief Justice but the signature block describes him as 'JUDGE OF APPEAL', an internal inconsistency in the judgment copy

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, "I.W. Waweru t/a Wathiomo Safaris & another v Fredrick J.P. Arodi & another [1998] KECA 65 (KLR)", Case Analysis (1998). Civil Appeal No. 26 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/65/eng@1998-03-25

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