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Court of AppealPartially AllowedCivil Appeal (Appli) 103 of 2005· [2009] KECA 235 (KLR)

WILSON NZIOKA MUTISO v JAMES MUHORO NDUNG’U & another [2009] KECA 235 (KLR)

Court of Appeal of Kenya
10 July 2009
EGE. M. GithinjiDAD. K. S. AganyanyaJNJ. G. Nyamu
553 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal filed 250 days late without permission, showing missed deadlines can end appeals entirely.

What this practically means

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Executive summary

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The applicants, respondents in the intended appeal, moved the Court of Appeal under rules 42, 80 and 81 of the Court of Appeal Rules to strike out the appellant's appeal filed on 16th May 2005. They contended that, the certified period for obtaining proceedings having ended on 8th July 2004, the appellant's 60-day period for instituting the appeal expired on or about 6th September 2004, leaving a delay of over 250 days that was inordinate and unexplained, and that the appellant had withdrawn an earlier application for leave to appeal out of time. When the application came up on 6th July 2009 only the applicant's counsel appeared; the appellant and his counsel, though served with hearing notice, were absent, so the application was heard ex parte. The court held that the record of appeal had been filed out of time and without leave, and struck out the appeal. It awarded the applicant the costs of both the appeal and the application. The court further ordered the release of funds awarded to the respondents and deposited in the East African Building Society in the joint names of the respondents' administrators and the Registrar of the High Court, to be released to them if they had reached the age of majority. The decision affirms that an appeal filed outside the prescribed time without leave is liable to be struck out. The ruling is short and unreasoned in parts; no separate opinions were delivered and the bench was unanimous.

Key legal issues

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01

Timeliness of filing the record of appeal

Holding

The record of appeal filed on 16th May 2005 was filed out of time, since the certified period for obtaining proceedings expired on 8th July 2004 and the 60-day period expired on or about 6th September 2004, and no leave to appeal out of time existed

Reasoning

The court counted the 60-day period from 27th May 2002 (notice of appeal) as extended by the certificate covering 29th July 2002 to 8th July 2004. On that computation the appeal was more than 250 days late. An earlier application for leave to appeal out of time had been withdrawn, so no extension was in place. Filing without leave meant the appeal was incompetent and liable to be struck out.

p. 1
02

Effect of non-attendance at the hearing of the application

Holding

The application was heard ex parte after service of hearing notice on the appellant's counsel, and the unopposed application succeeded

Reasoning

Only the applicant's counsel appeared on 6th July 2009 although the appellant's counsel had been served with hearing notice. The court proceeded ex parte, relying on the application, its grounds and the supporting affidavit. The absence of any opposing material or explanation for the delay left the application uncontroverted.

p. 2

Legal principles established

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  • A record of appeal must be filed within the prescribed period or within any extension certified for preparation of proceedings; filing out of time without leave of the court exposes the appeal to being struck out

Court orders

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  1. 1.The appeal dated and filed on 16th May 2005 is struck out
  2. 2.Costs of the appeal and of the application are awarded to the applicant/respondent
  3. 3.Money deposited in East African Building Society in the joint names of the respondents' administrators and the Registrar of the High Court be released to the respondents if they have reached the age of majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 995 of 2001
Jurisdiction invoked
Rules 42, 80 and 81 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, "WILSON NZIOKA MUTISO v JAMES MUHORO NDUNG’U & another [2009] KECA 235 (KLR)", Case Analysis (2009). Civil Appeal (Appli) 103 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/235/eng@2009-07-10

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