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Court of AppealAllowedCivil Misc Appl 197 of 2002

KASYI SURVITEX LIMITED vs KITALE MUNICIPAL COUNCIL,SAPAMO CONSULTANTS [2003] KECA 112 (KLR)

Court of Appeal of Kenya
23 January 2003
JGJ. E. GicheruPhilip Kiptoo TunoiP. K. TunoiALA. A. Lakha
197 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal filed late, confirming that missing the seven-day notice deadline ends an appeal before merits are heard.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal delivered on 23rd January 2003 by Gicheru, Tunoi and Lakha, Judges of Appeal, disposing of miscellaneous application No. 197 of 2002 by Kasyi Survitex Limited, the applicant, seeking to strike out a notice of appeal filed in an intended appeal against the judgment of the High Court of Kenya at Mombasa (Khaminwa, Comm) dated 10th May 2002 in H.C.C.C. No. 384 of 1993. The applicant was the party served with the notice of appeal. The court found that the notice had been lodged in the superior court on 24th May 2002 and served on the applicant on 12th June 2002, dates clearly outside the seven-day period prescribed by rule 76(1) of the Court of Appeal Rules. Instituting an appeal by a timely notice being an essential step in the proceedings, the court held that the step had not been taken as required by rule 80, struck out the notice of appeal and awarded costs to the applicant. The intended appeal therefore cannot proceed, and the High Court judgment of 10th May 2002 stands undisturbed, no merits review of it having been undertaken. The ruling is a single judgment of the whole three-Judge bench: there are no separate opinions and no dissent. No case law is cited; the decision rests entirely on rules 76(1) and 80 of the Court of Appeal Rules. The typed heading describes the court as the High Court of Kenya at Malindi, but the bench comprised three Judges of Appeal and the ruling was made at Mombasa; in substance it is a ruling of the Court of Appeal at Malindi.

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, lodged in the superior court on 24th May 2002 and served on the applicant on 12th June 2002, was filed outside the 7-day period prescribed by rule 76(1) of the Court of Appeal Rules and should therefore be struck out under rule 80 for failure to take an essential step in the proceedings.

Key legal issues

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01

Whether the notice of appeal in the intended appeal from the High Court judgment in H.C.C.C. No. 384 of 1993 (Mombasa) should be struck out for having been lodged and served outside the 7-day period prescribed by rule 76(1) of the Court of Appeal Rules.

Holding

Yes. The notice of appeal, lodged in the superior court on 24th May 2002 and served on the applicant on 12th June 2002, was clearly outside the prescribed 7-day period; an essential step in the proceedings was therefore not taken under rule 80, and the notice of appeal was struck out with costs to the applicant.

Reasoning

Rule 76(1) of the Court of Appeal Rules prescribes seven days for lodging a notice of appeal. The judgment appealed from was dated 10th May 2002, yet the notice was lodged in the superior court on 24th May 2002 and served on the applicant on 12th June 2002, dates plainly outside the prescribed period. Instituting an appeal by a timely notice is an essential step under rule 80; where that step is not taken, the notice is incompetent and liable to be struck out. The court accordingly struck out the notice and awarded costs to the applicant, leaving the judgment below undisturbed.

p. 1

Legal principles established

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  • Where a notice of appeal is lodged and served outside the 7-day period prescribed by rule 76(1) of the Court of Appeal Rules, an essential step in the proceedings has not been taken under rule 80 and the notice is liable to be struck out.
  • A notice of appeal must be lodged and served within the 7-day period prescribed by rule 76(1); lodgment or service beyond that period is non-compliance rendering the notice incompetent.

Court orders

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  1. 1.The said Notice of Appeal is struck out.
  2. 2.Costs of the application to the applicant.

The bench

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

JG
majority
Philip Kiptoo Tunoi
majority
AL
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 384 of 1993
Jurisdiction invoked
Rules 76(1) and 80 of the Court of Appeal Rules - the Court of Appeal's power to strike out a notice of appeal where an essential step in the intended appeal has not been taken within the prescribed time

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.

In the result the said Notice of Appeal is struck out with costs to the applicant.
p. 1Final orders - notice of appeal struck out with costs to the applicant
The Notice of Appeal sought to be struck out was served on the applicant on 12-6-02 clearly outside the prescribed period of 7 days under rule 76 (1) of the Court of Appeal Rules
p. 1Non-compliance with rule 76(1) - notice of appeal filed out of time
An essential step in the proceedings was therefore not taken under the provisions of rule 80 of the Rules of this Court
p. 1Rule 80 - failure to take an essential step in the proceedings

Issues in the judgment

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minor

The typed heading designates the court as the High Court of Kenya at Malindi, yet the ruling is signed by three Judges of Appeal, applies the Court of Appeal Rules, and strikes out a notice of appeal from a High Court judgment; the heading is evidently a misnomer for the Court of Appeal at Malindi.

minor

The heading places the court at Malindi while the closing line states the ruling was made at Mombasa; the venue discrepancy is unexplained on the face of the document.

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, "KASYI SURVITEX LIMITED vs KITALE MUNICIPAL COUNCIL,SAPAMO CONSULTANTS [2003] KECA 112 (KLR)", Case Analysis (2003). Civil Misc Appl 197 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/112/eng@2003-01-23

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