Mwaniki Munyi & 55 others v Attorney General & 17 others [2014] KECA 164 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a land appeal filed late without permission, confirming that missed appeal deadlines cannot be excused.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the striking-out application under Rule 84
The application, filed on 17th October 2014 after service of the Record of Appeal on 11th October 2014, was within the 30-day window under the proviso to Rule 84 and therefore properly before the Court.
The proviso to Rule 84 bars a striking-out application brought more than thirty days after service of the notice or record of appeal. Service was effected on 11th October 2014 and the motion was filed six days later, comfortably within the period, so the threshold requirement for the application to be entertained was satisfied.
Filing and service of the Notice of Appeal
The Notice of Appeal was filed within time (seven days after the ruling), but its service on 31st July 2014 was seven days out of the deadline under Rule 77(1).
Rule 75(2) requires the notice to be lodged within 14 days of the decision; a notice lodged on 17th July 2014 against a ruling of 10th July 2014 was in time. However, Rule 77(1) required service on or before 24th July 2014, and uncontroverted evidence showed service occurred on 31st July 2014, a delay the 2nd respondent never explained.
Late filing of the Record of Appeal without leave and competency of the appeal
The Record of Appeal filed on 3rd October 2014 was 18 days late and filed without leave; no explanation for the delay was given, rendering the appeal incompetent and liable to be struck out.
Rule 82(1) required institution of the appeal within 60 days of the Notice of Appeal, i.e. by 15th September 2014. Filing on 3rd October 2014 without leave breached the rule. The 2nd respondent filed no replying affidavit and did not attend the hearing, leaving the delay unexplained. Competency of an appeal is a jurisdictional matter that the overriding objective cannot cure, following Felister Wakonyo Wamahiu v Joseph Wachira Mwangi. The appeal was therefore struck out with costs to the applicants and 1st respondent.
Legal principles established
#- An appeal filed out of time without leave of the Court is incompetent, and the incompetency of an appeal goes to jurisdiction and cannot be cured by the overriding objective.
- The Court has jurisdiction only over appeals filed within the requisite time or out of time with leave; unexplained delay in filing the Record of Appeal without leave warrants striking out the appeal.
Court orders
#- 1.The 2nd respondent's appeal is struck out as incompetent
- 2.The applicants and the 1st respondent shall have costs of this application
- On appeal from
- High Court of Kenya at Kerugoya
- H.C.ELC. No. 822 of 2013
- Jurisdiction invoked
- Rule 84 of the Court of Appeal Rules (application to strike out an appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaniki Munyi & 55 others v Attorney General & 17 others [2014] KECA 164 (KLR)", Case Analysis (2014). Civil Appeal (Application) No. 47 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/164/eng@2014-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.