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Court of AppealPartially AllowedCivil Appeal (Application) No. 226 of 2010· [2013] KECA 265 (KLR)

Julia Wanjiru & 4 others v Jacinta Wairimu Njoroge [2013] KECA 265 (KLR)

Court of Appeal of Kenya
20 September 2013
JMJ. W. MweraSKS. Gatembu KairuAMA. K. Murgor
1,027 words in judgment
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The bottom line

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The Court of Appeal struck out an appeal filed three days late and served 19 days late, showing Kenya's appeal deadlines are enforced strictly.

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 (Mwera, Gatembu Kairu and Murgor, JJA) delivered on 20th September 2013 on a notice of motion by Rahab Muringe Nderi and Alice Wambui Karanja seeking to strike out the record of appeal filed by Jacinta Wairimu Njoroge against the judgment of Ang'awa J in H.C.C.C. No. 1418 of 2001, in which the High Court dismissed Jacinta Njoroge's land claim, cancelled her title and directed that title issue in the names of the respondents. The application, brought under Rules 80, 81, 82 and 87 of the old Court of Appeal Rules, argued that the record of appeal was filed more than 60 days after the certificate of delay was issued on 30th June 2010, that service on the respondents on 20th September 2010 was 19 days outside the period allowed by Rule 87, and that the certificate of delay was inaccurate. The appellant filed no grounds of opposition and did not appear; only Mr Muchai appeared for the applicants. The court held that time should be computed from issuance of the certified proceedings and that the filing was out of time, with no extension of time sought or outstanding, and that service was also late. Finding these delays undisputed and unexplained, the court struck out the appeal under Rule 80 with costs to the respondents, leaving the High Court judgment and decree in place.

Key legal issues

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01

Whether the record of appeal was filed out of time under Rule 81

Holding

Yes. Time was computed from issuance of the certified proceedings on 30th June 2010, and the record of appeal filed on 1st September 2010 exceeded the 60-day window, with no extension of time sought or outstanding.

Reasoning

Rule 81 requires institution of an appeal within 60 days of lodging the notice of appeal, excluding the time needed to prepare and deliver certified proceedings. The certificate of delay showed proceedings were issued on 30th June 2010, yet the record of appeal was not lodged until 1st September 2010. The record disclosed no application for extension of time, so the delay of three days beyond 60 days was unexplained and breached Rule 81.

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02

Whether service of the record of appeal complied with Rule 87

Holding

No. The respondents were served on 20th September 2010, some 19 days after the filing of the record, far beyond the 7 days allowed by Rule 87.

Reasoning

Rule 87 requires that respondents be served with copies of the memorandum or record of appeal before or within seven days after lodging. Service occurred on 20th September 2010, nineteen days late. Together with the filing delay, this constituted non-compliance with the Rules, justifying the exercise of the court's power under Rule 80 to strike out the appeal.

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Legal principles established

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  • An appeal must be instituted within 60 days of lodging the notice of appeal, and where an application for a copy of proceedings has been made, the time required for preparation and delivery of that copy is excluded in computing the period.
  • Non-compliance with the time limits for lodging and serving a record of appeal, absent an extension of time or explanation, warrants striking out the appeal under Rule 80 of the Court of Appeal Rules.

Court orders

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  1. 1.The record of appeal filed on 1st September 2010 is struck out under Rule 80 of the Court of Appeal Rules
  2. 2.Costs of the application awarded to the respondents
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1418 of 2001
Jurisdiction invoked
Rules 80, 81, 82 and 87 of the (old) Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Julia Wanjiru & 4 others v Jacinta Wairimu Njoroge [2013] KECA 265 (KLR)", Case Analysis (2013). Civil Appeal (Application) No. 226 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/265/eng@2013-09-20

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