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Court of AppealAllowedCivil Application No. Nai. 48 of 1998· [1998] KECA 208 (KLR)

LEE SHEH POONG vs MWANIKI NJOROGE MAKAU & ANOTHER [1998] KECA 208 (KLR)

Court of Appeal
27 April 1998
JGJ.E. GicheruASA.B. ShahALA.A. Lakha
237 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal notice filed late and never served, confirming missed appeal deadlines can end an appeal entirely.

What this practically means

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Executive summary

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This is a short interlocutory ruling of the Court of Appeal at Nairobi (Gicheru, Shah and Lakha, JJ.A.) delivered on 27th April 1998 in Civil Application No. Nai. 48 of 1998. The applicant, Lee Sheh Poong, moved under rule 80 of the Court of Appeal Rules to strike out a Notice of Appeal filed on 3rd June 1997 by the respondents against the judgment and decree of the High Court of Kenya at Nakuru (Ondeyo, J.) dated 19th May 1997 in H.C.C.C. No. 455 of 1995. The notice had not been served on the applicant, in breach of rule 76, and counsel for the respondents conceded it was filed out of time. An application for extension of time had already been dismissed by a single judge of the Court on 11th March 1998, and no reference from that dismissal was lodged. The court held that the application must therefore succeed and struck out the notice of appeal with costs, including the costs of the application. The ruling is a single judgment of the full bench with no separate opinions and cites no case authorities. Its binding effect for lower courts and practitioners is that an unserved, out-of-time notice of appeal, where extension of time has been refused and no reference pursued, cannot stand and will be struck out under rule 80.

Key legal issues

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01

Striking out of an untimely and unserved notice of appeal under rule 80

Holding

The notice of appeal, filed out of time and unserved in breach of rule 76, with the extension-of-time application dismissed and no reference filed, had to be struck out.

Reasoning

The applicant invoked rule 80 to strike out a notice of appeal filed on 3rd June 1997 but never served, contrary to rule 76. Counsel for the respondents conceded the notice was out of time. A single judge had already dismissed the application for extension of time on 11th March 1998, and no reference from that order was pursued. With the time bar unremedied, the notice was a nullity and the application necessarily succeeded.

Legal principles established

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  • Where a notice of appeal is filed out of time and an application for extension of time has been dismissed with no reference lodged, the notice of appeal must be struck out under rule 80, particularly where it was also not served as required by rule 76.

Court orders

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  1. 1.The notice of appeal filed on 3rd June 1997 is struck out with costs including the costs of the application
On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 455 of 1995
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (application to strike out Notice of Appeal and Record of Appeal)

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, "LEE SHEH POONG vs MWANIKI NJOROGE MAKAU & ANOTHER [1998] KECA 208 (KLR)", Case Analysis (1998). Civil Application No. Nai. 48 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/208/eng@1998-04-27

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