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Court of AppealDismissedCivil Application No. Nai. 373 of 2002· [2004] KECA 52 (KLR)

Humphrey Kariuki & another v Attorney General [2004] KECA 52 (KLR)

Court of Appeal of Kenya
20 February 2004
ROR.S.C. OmoloPhilip Kiptoo TunoiP.K. TunoiEOE.O. O'Kubasu
520 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that strike-out applications don't apply to criminal appeals, because the Registrar—not the parties—prepares the appeal record.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Omolo, Tunoi and O'Kubasu, JJ.A) dismissing an application by Humphrey Kariuki and Crucial Properties Limited to strike out a notice of appeal lodged by the Attorney General on 10th May, 2001. The applicants invoked rules 42, 43(1), 80, 81(1) and 82(a) of the Court of Appeal Rules, alleging that the respondent had failed to file his appeal within the time prescribed by the Rules, leaving the notice of appeal spent and of no consequence. Before hearing counsel, the court itself raised the threshold question whether the underlying proceedings before Oguk J. were criminal or civil, because they had been conducted in the High Court's Criminal Division, bore a criminal application number, and involved the Narcotic Drugs and Psychotropic Substances (Control) Act, No. 4 of 1994 read with Legal Notice No. 40 of 2001. Oguk J. had also expressly held that the Criminal Division of the High Court was properly seized of the matter. The court explained that if the matter was civil the application was properly before it, but if criminal it was misconceived, since rule 61(1) places responsibility for preparing the record of appeal on the Registrar of the superior court, leaving a party a minimal role after lodging a notice of appeal. The applicants failed to show the proceedings were civil; the court accordingly held the application misconceived and dismissed it with costs.

Key legal issues

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Whether an application under rules 42, 43(1), 80, 81(1) and 82(a) of the Court of Appeal Rules to strike out a notice of appeal for failure to take an essential step is available where the underlying proceedings are criminal rather than civil

Holding

The application is misconceived. In criminal appeals, the Registrar of the superior court is responsible for preparing the record of appeal, so the applicants' complaint that the respondent had not filed his appeal within time could not be sustained on the material before the court.

Reasoning

The court noted the impugned proceedings were held in the High Court's Criminal Division, the cause number was a Criminal Application, and Oguk J. had expressly held that the Criminal Division was properly seized of the matter. Since the applicants failed to demonstrate the proceedings were civil, the court treated the strike-out application as misconceived and dismissed it with costs.

p. 2

Legal principles established

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  • Where the matter on appeal is criminal, a party plays only a minimal role in preparing the appeal after lodging a notice of appeal, because the Registrar of the superior court prepares the record of appeal; an application to strike out such a notice for failure to take an essential step is misconceived.

Court orders

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  1. 1.The applicants' application to strike out the notice of appeal is dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 43(1)
  • Court of Appeal RulesRule 80
  • Court of Appeal RulesRule 81(1)
  • Court of Appeal RulesRule 82(a)
  • Court of Appeal RulesRule 61(1)
  • Narcotic Drugs and Psychotropic Substances (Control) ActNo. 4 of 1994
On appeal from
High Court of Kenya at Nairobi
H.C.MISC. APPL. NO. 174 OF 2001
Jurisdiction invoked
Rules 42, 43(1), 80, 81(1) and 82(a) of the Court of Appeal Rules

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, "Humphrey Kariuki & another v Attorney General [2004] KECA 52 (KLR)", Case Analysis (2004). Civil Application No. Nai. 373 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/52/eng@2004-02-20

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