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Court of AppealDismissedCivil Appl No. NAI. 222 of 98

Njoroge Nganga and Another v Thomas Olando Ogola [1998] KECA 105 (KLR)

Court of Appeal of Kenya
26 November 1998
JGJ. E. GicheruRKR. O. KwachEOE. Owuor
262 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a Notice of Appeal is filed in time when lodged with the High Court's registrar, not when it later reaches the Court of Appeal registry.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Kisumu (Gicheru, Kwach and Owuor JJA) on a notice of motion under rule 80 of the Court of Appeal Rules in which the applicants, Njoroge Nganga and John Marenga, sought to strike out a Notice of Appeal on the ground that it was lodged out of time and without leave of the Court. The decision sought to be appealed had been delivered by Wambilyangah J on 13.5.96. The Notice of Appeal, dated 17.5.96, was shown by an annexure to the replying affidavit of Mr. Siganga to have been lodged with the registrar of the superior court on 20.5.96, as required by rule 74(1) of the Rules. The Court held that this was plainly within the 14-day period prescribed by rule 74(2). Counsel for the applicant, Mr. Ombijah, had argued that the operative date was 28.5.96, when the Notice reached the registry of the Court of Appeal under rule 75; the Court expressly rejected that contention, holding that lodgement with the registrar of the superior court is what starts time running. Finding no merit in the application, the Court dismissed it with costs to the appellants (described parenthetically as respondents in the motion). The ruling binds subordinate courts and the High Court on the point that the rule 75 transmission date is not the operative lodgement date for computing the rule 74(2) period. No external authorities were cited.

Questions the Court framed

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

  1. 1.Whether the Notice of Appeal dated 17.5.96 was lodged out of time and without leave of the Court, and should therefore be struck out under rule 80 of the Court of Appeal Rules

Key legal issues

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01

The operative date for lodgement of a Notice of Appeal for purposes of the 14-day period under rule 74(2)

Holding

The Notice of Appeal was lodged within time because it was lodged with the registrar of the superior court on 20.5.96, within 14 days of the decision of 13.5.96; the date it reached the Court of Appeal registry under rule 75 is not the operative date.

Reasoning

The decision appealed against was given on 13.5.96. Rule 74(1) requires the Notice of Appeal to be lodged with the registrar of the superior court, and rule 74(2) prescribes a 14-day period. The copy of the Notice showed lodgement on 20.5.96, within time. Counsel for the applicant erred in treating the date of receipt at the Court of Appeal registry under rule 75 (28.5.96) as the operative date. The application therefore lacked merit.

p. 2

Legal principles established

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  • For purposes of the time limit in rule 74(2) of the Court of Appeal Rules, a Notice of Appeal is lodged when it is lodged with the registrar of the superior court under rule 74(1), not when it reaches the registry of the Court of Appeal under rule 75.

Court orders

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  1. 1.The application under rule 80 to strike out the Notice of Appeal is dismissed
  2. 2.Costs of the application awarded to the appellants (respondents in this motion)

The bench

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

JG
majority
RK
majority
EO
majority
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (application to strike out a Notice of Appeal)

Relief refused

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Striking out of the Notice of Appeal lodged by Njoroge Nganga and John Marenga

The Notice of Appeal was lodged within the 14-day period prescribed by rule 74(2), the operative date being lodgement with the registrar of the superior court, not receipt at the Court of Appeal registry under rule 75

p. 2

Costs

The application was dismissed with costs to the appellants (respondents in this motion), as ordered: "There is no merit in this application and we order it dismissed with costs to the appellants (respondents in this motion)"

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.

There is no room for any doubt that the notice was lodged within 14 days as provided by rule 74(2) of the Rules of this court.
p. 2Timeliness of Notice of Appeal under rule 74(2)
We think, with respect, that Mr. Ombijah is wrong in thinking that the operative date was 28.5.96, when the Notice of Appeal reached the registry of this Court in terms of rule 75 of the Rules of this Court.
p. 2Rule 75 transmission date is not the operative lodgement date
There is no merit in this application and we order it dismissed with costs to the appellants (respondents in this motion)
p. 2Final orders - dismissal of the rule 80 application with costs

Issues in the judgment

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minor

The costs order is internally confusing: the applicants seeking to strike out the Notice of Appeal are described as the appellants, yet costs are awarded 'to the appellants (respondents in this motion)', although the applicants (Njoroge Nganga and John Marenga) are the ones moving the Court and the respondent to the motion is Thomas Olando Ogola. The parenthetical appears to reverse the parties' roles in the motion.

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, "Njoroge Nganga and Another v Thomas Olando Ogola [1998] KECA 105 (KLR)", Case Analysis (1998). Civil Appl No. NAI. 222 of 98. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/105/eng@1998-11-26

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