Wangethi Mwangi & another v J. P. Machira T/A Machira & Co. Advocates [2003] KECA 122 (KLR)
The bottom line
#Kenya's Court of Appeal threw out an appeal filed 46 days late — missing appeal deadlines can end a case entirely, and the winner recovered costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of appeal was defective and incompetent under rule 74(3) and (6) of the Court of Appeal Rules
- 2.Whether the record of appeal was invalid because the appeal was filed out of time without leave
- 3.Whether the certificate of delay was misleading and improperly prepared by the advocates
- 4.Whether the omission of the letter of August 5, 2002 from the record contravened rule 85 and rendered the record incompetent
Key legal issues
#Whether the record of appeal was properly before the court
The appeal was filed 46 days out of time and without leave, so the record of appeal was not properly before the court and the appeal fell to be struck out.
Copies of proceedings were ready for collection on August 5, 2002; the respondents had 60 days from notification but filed on November 19, 2002, 106 days after notification, without leave to extend. The court accepted the applicant's contention that the record was not properly before the court.
Certification of the copy of the judgment in the record
The copy of the judgment required by rule 85(1)(g) need not be certified; the delay between August 5 and September 20, 2002 while awaiting a certified copy could not be discounted under the proviso to rule 81(1).
The court held that confusion arose over the copy of the judgment but that no rule requires certification of the copy included in the record. The respondents' contention of 60 days from September 20, 2002 was rejected; the appeal was nonetheless lodged out of time and without leave.
Defects in the notice of appeal
The applicant contended the notice of appeal was incurably defective for non-conformity with rule 74(3) and (6) and Form D, but the court's disposition rested on the appeal being out of time and without leave.
The application was brought under rule 80 on grounds that the notice of appeal was defective and incompetent and that essential steps under rules 81 and 85 had not been taken within prescribed time. The court struck out the appeal on the timeliness ground.
Legal principles established
#- A copy of the judgment required to be included in the record of appeal under rule 85(1)(g) need not be certified, and time for computing the lodging of the appeal runs from notification that proceedings are ready under the proviso to rule 81(1).
- An appeal lodged out of time and without leave of the court is incompetent and may be struck out under rule 80.
Court orders
#- 1.The appeal (Civil Appeal No. 303 of 2002) is struck out
- 2.Costs of the appeal to the applicant (respondent in the appeal)
- 3.The applicant to have costs of the motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1709 of 1996
- Jurisdiction invoked
- Rule 80 of the Court of Appeal Rules (inherent appellate jurisdiction to strike out an incompetent appeal); this document is a ruling on an application to strike out, not the substantive appeal.
Quotable passages
#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 requirement whatsoever that a copy thereof required by rule 85 (1) (g) to be included in the record of appeal must be certified
in those circumstances we think it is rightly contended that the record of appeal is not properly before the court and the same should be struck out
These being our views of the matter the appeal is struck out with costs to the applicant. The applicant will also have costs of this motion.
Issues in the judgment
#The judgment states conflicting dates for the delivery of the High Court judgment - the header says the appeal is from a judgment delivered on 7th September 2001, while the application narrative says the judgment was delivered on September 14, 2001; the respondents are also recorded as accepting delivery on September 7, 2001.
The judgment internally records that the respondents had 60 days from September 20, 2002 in a sentence that appears to reject a submission, but the sentence is ambiguously drafted ('we see no basis for the submission that the respondents had 60 days'), creating some uncertainty as to which date the limitation ran from.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wangethi Mwangi & another v J. P. Machira T/A Machira & Co. Advocates [2003] KECA 122 (KLR)", Case Analysis (2003). Civil Appeal No. 303 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/122/eng@2003-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.