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Court of AppealPartially AllowedCivil Appeal 287 of 2004· [2006] KECA 160 (KLR)

MJAHID SUO & another v JOSEPH KASHURU & another [2006] KECA 160 (KLR)

Court of Appeal of Kenya
21 July 2006
ROR.S.C. OmoloPhilip Kiptoo TunoiP.K. TunoiSBS.E.O. Bosire
330 words in judgment
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The bottom line

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In Kenya, filing an appeal even one day late—without the court's permission—can permanently end the case.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Omolo, Tunoi and Bosire JJA) on a notice of motion dated 21st December 2004, arising from an appeal against the ruling of Ouko J of the High Court at Malindi dated 23rd September 2004 in H.C.C.C. No. 51 of 2002, in which the plaint had been struck out. Counsel for the applicants argued first that the respondents needed leave of the superior court to appeal to the Court of Appeal. The court rejected this, holding that the striking out of the plaint conclusively determined the rights of the parties with regard to all or any matters in controversy in the suit, by virtue of Order 42 Rule 3 of the Civil Procedure Rules, so the appeal could not be struck out on that basis. The applicants' second ground, however, succeeded: the respondents' notice of appeal had been filed one day late, with no leave of either the superior court or the Court of Appeal. The court held that point unanswerable and refused to excuse the delay despite its brevity of a single day. The respondents and their counsel, though served with the hearing notice, did not appear. The court allowed the motion and struck out the notice of appeal filed 8th October 2004 and the record of appeal lodged 2nd December 2004, with costs to the appeal and application applicants. The binding proposition for lower courts is that time limits for filing a notice of appeal are strictly enforced; even a one-day default without leave is fatal.

Key legal issues

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01

Whether leave of the superior court was required for an appeal against an order striking out a plaint

Holding

No leave was required; striking out a plaint is a final determination of the parties' rights under Order 42 Rule 3, Civil Procedure Rules

Reasoning

The court applied Order 42 Rule 3 of the Civil Procedure Rules, reasoning that once the plaint was struck out, the superior court had conclusively determined the parties' rights regarding all or any matters in controversy in the suit. The order was therefore final for the purposes of an appeal as of right, and the applicant's argument that leave was needed was rejected. Accordingly, the appeal could not be struck out on that basis.

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02

Whether a notice of appeal filed one day late without leave could be excused

Holding

No; the delay of one day without leave of either the superior court or the Court of Appeal was fatal and the notice of appeal and record of appeal were struck out

Reasoning

The notice of appeal was filed one day late with no leave of either the superior court or this Court. The court held the point unanswerable and refused to excuse the delay notwithstanding its brevity. The respondents, though served with notice of the hearing, did not appear to contest the application, and the court struck out the notice of appeal and the record of appeal with costs.

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Legal principles established

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  • A notice of appeal must be filed within the prescribed time or within leave; a filing that is even one day late without leave of either court is fatal and renders the appeal liable to be struck out, regardless of the brevity of the delay
  • Striking out a plaint conclusively determines the rights of the parties on all matters in controversy, so no leave of the superior court is needed to appeal against it under Order 42 Rule 3, Civil Procedure Rules

Court orders

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  1. 1.The applicants' notice of motion dated and lodged in the Court on 21st December 2004 is allowed
  2. 2.The notice of appeal dated and lodged in court on 8th October 2004 and the record of appeal lodged on 2nd December 2004 are struck out
  3. 3.Costs of the appeal and the application awarded to the applicants

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 3
On appeal from
High Court of Kenya at Malindi
H.C.C.C. No. 51 of 2002
Jurisdiction invoked
Appeal from the High Court under the Civil Procedure Rules; the motion was brought under the Court of Appeal's appellate jurisdiction (no specific constitutional/statutory article stated beyond Order 42 Rule 3, Civil Procedure 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, "MJAHID SUO & another v JOSEPH KASHURU & another [2006] KECA 160 (KLR)", Case Analysis (2006). Civil Appeal 287 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/160/eng@2006-07-21

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