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Court of AppealStruck OutCivil Appeal 341 of 2002· [2005] KECA 89 (KLR)

Charles Murithi Muthuri & 2 others v Esther Karambu [2005] KECA 89 (KLR)

Court of Appeal
28 October 2005
534 words in judgment
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The bottom line

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A Kenyan woman's late attempt to end an appeal backfired — her own application was struck out for missing the strict 30-day deadline, with costs.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Omolo, Githinji and Waki, JJ.A) delivered on 28 October 2005 in Civil Appeal 341 of 2002, which arises from H.C. Succession Cause No. 233 of 2000 at Meru, decided on 15 October 2001. What the Court decided was not the appeal but the respondent Esther Karambu's notice of motion to strike the appeal out. Her ground was that the notice of appeal was filed out of time: the judgment was delivered on 15 October 2001 and the notice of appeal on 15 November 2001, which, if correct, fell outside the fourteen days prescribed by Rule 74(2) of the Court of Appeal Rules. The Court did not decide that question. Instead it applied the proviso to Rule 80, inserted by Legal Notice No. 152 of 2002 with effect from 4 July 2002, which forbids any application to strike out a notice of appeal or an appeal more than thirty days after service of the record of appeal on the respondent. The record of appeal was lodged on 29 September 2002 and, under Rule 87(1), had to be served within seven days of lodgment. The applicant made no allegation of late service, so the Court took service to have been effected within that period. Her motion, lodged on 23 April 2004, was therefore nearly two years out of time, incompetent, and was struck out with costs to the respondents. The appeal accordingly survived, and the timeliness of the notice of appeal under Rule 74(2) remains undecided in this ruling.

Key legal issues

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01

Time bar under the proviso to Rule 80 for applications to strike out a notice of appeal or an appeal.

Holding

An application to strike out a notice of appeal or an appeal must be brought within thirty days from the date of service of the record of appeal on the respondent; an application brought after that period is incompetent and must itself be struck out.

Reasoning

The proviso to Rule 80, introduced by Legal Notice No. 152 of 2002 with effect from 4 July 2002, fixes a thirty-day window for striking-out applications, computed from service of the record of appeal on the respondent. The record was lodged on 29 September 2002 and Rule 87(1) required service within seven days. No allegation of late service was made, so service was presumed within that period. The motion filed on 23 April 2004 was nearly two years outside the window and therefore incompetent.

p. 2
02

Presumption of timely service of the record of appeal in the absence of any allegation to the contrary.

Holding

Where the respondent makes no allegation that the record of appeal was not served within the seven days prescribed by Rule 87(1), the Court will take it that service was effected within that period.

Reasoning

The thirty-day period under the proviso to Rule 80 runs from service of the record of appeal, so the deadline turns on the date of service. Rule 87(1) required the record, lodged on 29 September 2002, to be served within seven days. The applicant advanced no allegation that service was late, so the Court presumed compliance with Rule 87(1), fixed the last day for the motion accordingly, and exposed the April 2004 motion as grossly out of time.

p. 2
03

Effect of an out-of-time striking-out application on the determination of the underlying ground.

Holding

A striking-out application filed outside the thirty-day period is incompetent and is struck out on that basis alone; the Court need not, and did not, decide whether the notice of appeal was itself filed out of time under Rule 74(2).

Reasoning

The applicant's only ground was that the notice of appeal, filed on 15 November 2001, a month after the judgment of 15 October 2001, fell outside the fourteen days allowed by Rule 74(2). The Court stated that ground conditionally and never adjudicated it. Because the motion itself was time-barred, it was struck out on the basis of its own incompetence alone, leaving both the notice-of-appeal point and the appeal itself undisturbed and undecided.

p. 2

Legal principles established

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  • Under the proviso to Rule 80 of the Court of Appeal Rules (as inserted by Legal Notice No. 152 of 2002), an application to strike out a notice of appeal or an appeal must be brought within thirty days from the date of service of the record of appeal on the respondent; an application filed after that period is incompetent and must itself be struck out.
  • Where a respondent to an appeal makes no allegation that the record of appeal was not served within the seven days prescribed by Rule 87(1), the Court will take it that service was effected within that period, and time under the proviso to Rule 80 runs from that presumed service.
  • A striking-out application filed outside the thirty-day period in the proviso to Rule 80 is incompetent and will be struck out on that ground alone, without any need to adjudicate the merits of the appeal or the alleged out-of-time notice of appeal under Rule 74(2).

Court orders

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  1. 1.The applicant's notice of motion dated 22nd April, 2004 and lodged in the Court on 23rd April, 2004 is struck out.
  2. 2.The costs of the motion are awarded to the respondents (the three appellants).

Authorities

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Legislation

  • Court of Appeal RulesRule 74(2) (fourteen days for filing a notice of appeal)
  • Court of Appeal RulesRule 80 (proviso)
  • Court of Appeal RulesRule 87(1) (service of record of appeal within seven days of lodgment)
  • Legal Notice No. 152 of 2002Insertion of the proviso to Rule 80 of the Court of Appeal Rules, effective 4 July 2002
On appeal from
High Court of Kenya at Meru
H.C. Succession Cause No. 233 of 2000
Jurisdiction invoked
Court of Appeal Rules - the proviso to Rule 80 (inserted by Legal Notice No. 152 of 2002, effective 4 July 2002), read with Rules 74(2) and 87(1), governing applications to strike out a notice of appeal or an appeal; no constitutional provision was invoked in this interlocutory ruling.

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, "Charles Murithi Muthuri & 2 others v Esther Karambu [2005] KECA 89 (KLR)", Case Analysis (2005). Civil Appeal 341 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/89/eng@2005-10-28

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