Elizabeth Cheruiyot & 1 other v Hudson Wanambisi Kamulamba
The bottom line
#Kenya's Court of Appeal struck out a Notice of Appeal served 11 days late, confirming a stamped copy can be served without waiting for the Registrar's signature.
What this practically means
#Executive summary
#Key legal issues
#Whether a Notice of Appeal served out of time must be struck out where no extension of time has been sought.
Yes. The Notice of Appeal lodged on 1st December, 2001 was served on 18th December, 2001, some 11 days out of time, and with no application for extension of time to validate the late service, it was struck out.
The Court found that the Notice of Appeal was lodged on 1st December, 2001 but served on 18th December, 2001, some 11 days out of time, and that no application for extension of time had been made to deem the service as having been done in time. The only excuse offered was the unavailability of a signed copy of the notice, which the Court rejected because a stamped copy could have been served. Late service, unvalidated by any extension of time, therefore rendered the Notice liable to be struck out, and the Court so ordered, with costs to the applicant.
Whether service of a Notice of Appeal must await the Registrar's signature.
No. It is not necessary to wait for the superior court Registrar to sign the Notice of Appeal; a stamped copy can be served.
Counsel for the respondent explained the delay in service on the ground that a signed copy of the Notice of Appeal could not be obtained from the Registrar in good time. The Court rejected this as a valid excuse, holding that a party serving a Notice of Appeal need not wait until the superior court Registrar signs it, since a stamped copy can be served. The Registrar's signature is therefore no prerequisite to effective and timely service of the notice on the other side.
Whether the stay order granted on 16th March, 2001 survives the striking out of the Notice of Appeal.
No. The stay order was vacated.
Having struck out the Notice of Appeal, the Court also vacated the stay order it had earlier granted in the matter. The ruling assigns no reasons for this order; it is consequential, since the striking out of the Notice of Appeal removed the intended appeal in respect of which the stay had been granted. The Court made the vacation of the stay part of its operative orders, alongside the striking out of the notice and the award of the costs of the application to the applicant.
Legal principles established
#- A party need not wait for the superior court Registrar to sign a Notice of Appeal before serving it; a stamped copy can be served, and the unavailability of a signed copy does not excuse late service.
- A Notice of Appeal served out of time, where no application for extension of time has been made to validate the late service, is liable to be struck out.
- A stay order granted in support of an intended appeal does not survive the striking out of the Notice of Appeal.
Court orders
#- 1.The Notice of Appeal lodged by the respondent on 1st December, 2001 is struck out.
- 2.The applicant will have the costs of this application.
- 3.The stay order granted by the Court on 16th March, 2001 is vacated.
- Jurisdiction invoked
- Not stated in the ruling. The Court determined a miscellaneous application incidental to an intended appeal without citing any constitutional or statutory provision.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Cheruiyot & 1 other v Hudson Wanambisi Kamulamba", Case Analysis (2002). Civil Misc Appl No. 429 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/115/eng@2002-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.