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Court of AppealDismissedCivil Appeal (Application) No. 249 of 2010· [2011] KECA 156 (KLR)

Kenyua Ngunjiri v John B. Muya [2011] KECA 156 (KLR)

Court of Appeal of Kenya
29 July 2011
1,397 words in judgment
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The bottom line

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The Court of Appeal confirmed that a notice of appeal in Kenya counts as filed the day it is stamped and receipted at the registry, not when the Registrar later signs it.

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 (O'Kubasu, Onyango Otieno and Visram, JJ.A.) on the respondent's notice of motion dated 14th October 2010 seeking to strike out the notice of appeal and the memorandum and record of appeal in Civil Appeal No. 249 of 2010. The appeal challenges a judgment of Okwengu J. of 21st October 2009 in High Court Civil Appeal No. 88 "B" of 2007, which set aside the subordinate court's judgment and dismissed the suit, with no costs to any party. The applicant argued that the notice of appeal was lodged late because the Registrar signed it on 20th November 2009, that no extension of time had been sought, and that the appeal was an abuse of process because the money claimed was recoverable from a third party, Safina Limited. The court held that the notice was filed on 29th October 2009, eight days after judgment, well within the fourteen days allowed by rule 74 (now rule 75), and that lodgment is effective upon filing and stamping, not upon the Registrar's later signature. The abuse-of-process argument was reserved for the full hearing. The applicant's failure to disclose that his advocates had refused timely service also weighed against him. The application was dismissed with costs to the respondent/appellant.

Key legal issues

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01

Effective date of lodgment of a notice of appeal

Holding

The notice of appeal was lodged in time; lodgment occurs on filing and stamping, not on the Registrar's subsequent signature.

Reasoning

The judgment was delivered on 21st October 2009 and the notice of appeal was filed on 29th October 2009, eight days later, within the fourteen days prescribed by rule 74 (now rule 75). A filing receipt was issued and the superior court's rubber stamp appears on the notice. Requiring litigants to wait for the Registrar's signature in their presence would be unjust, since after filing the party no longer controls the document within the registry.

p. 2
02

Abuse of process where money is allegedly recoverable from a third party

Holding

That question cannot be determined on a striking-out application and is reserved for the hearing of the full appeal.

Reasoning

The applicant argued the appeal was theoretical because the appellant had commenced proceedings against Safina Limited, the third party allegedly holding the money. The court held that such a substantive question is not for decision on an interlocutory application to strike out the notice of appeal and record of appeal; it must be argued at the hearing of the full appeal.

p. 3
03

Alleged late service and candour in the application

Holding

The service ground failed because the applicant concealed that his own advocates had refused to accept timely service pending the Registrar's endorsement.

Reasoning

The appellant's unchallenged affidavit evidence was that the applicant's former advocate declined service of the notice of appeal on 29th October 2009, insisting it first be endorsed by the Registrar of the High Court. This assertion stood unchallenged, yet the applicant did not disclose it in his application. The court treated the non-disclosure as a lack of candour that disentitled him from relying on the delay-in-service ground.

p. 3

Legal principles established

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  • A notice of appeal is effectively lodged when it is filed in the registry and rubber-stamped with a filing receipt issued, not when the Registrar later signs or endorses it; a litigant does not control the document's movements within the registry after filing.
  • A party seeking to strike out an appeal must make full and candid disclosure of material facts, including facts explaining or excusing apparent delay in service; non-disclosure leaves the party without clean hands.

Court orders

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  1. 1.The respondent's notice of motion dated 14th October 2010 seeking striking out of the notice of appeal and the memorandum and record of appeal is dismissed
  2. 2.Costs of the application awarded to the respondent/appellant

Authorities

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Legislation

  • Court of Appeal Rulesrule 74 (repealed)
  • Court of Appeal Rulesrule 75
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 88 "B" of 2007
Jurisdiction invoked
Inherent jurisdiction of the Court of Appeal over interlocutory applications in pending appeals, under the Court of Appeal Rules (rule 74, repealed and now rule 75, on lodgment of notices of appeal)

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, "Kenyua Ngunjiri v John B. Muya [2011] KECA 156 (KLR)", Case Analysis (2011). Civil Appeal (Application) No. 249 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/156/eng@2011-07-29

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