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Court of AppealDismissedCivil Application No. NAI 323 of 2013· [2014] KECA 467 (KLR)

Francis Wakahiu Theuri v Monica Njeri Esther Wangui Catherine Muthoni Francis Njuru Ngugi T/A Wawage Investment Company & 1 other

Court of Appeal
11 July 2014
1,831 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to strike out notices of appeal, confirming that striking-out applications only succeed on narrow, rule-specified grounds.

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 (Koome, Mwera and Gatembu, JJ.A.) on an application under rule 84 of the Court of Appeal Rules by Francis Wakahiu Theuri seeking to strike out two notices of appeal lodged by the respondents against a High Court ruling of 25th September 2013 (Pauline Nyamweya, J) in ELC Case No. 2484 of 1994. The High Court had dismissed the respondents' application for review of a judgment of 14th December 2012 in favour of the applicant, but allowed their application for stay of execution conditional on furnishing security. The applicant argued that the intended appeals were frivolous and vexatious, had no chances of success, that he had not been served within time, and that the respondents had not complied with the stay conditions. The court held that the grounds for striking out a notice of appeal under rule 84 are limited to the grounds specified in the rule - that no appeal lies or that an essential step has not been taken or not taken within the prescribed time - and that the applicant's complaints would be matters for argument at the hearing of the appeal itself. The court found the notices were lodged within 14 days under rule 75(2), and although service exceeded the 7-day period under rule 77(1), the delay was attributable to the closure of the applicant's advocates' firm following the death of its proprietor and was cured by rule 78. The application was also out of time under the proviso to rule 84 in respect of one notice. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the applicant's grounds fell within rule 84

Holding

The grounds advanced by the applicant (frivolity, lack of chances of success, non-compliance with High Court orders) are not among the grounds permitted by rule 84 and are matters for argument at the hearing of the appeal.

Reasoning

Rule 84 confines striking out to cases where no appeal lies or an essential step has not been taken or was not taken within the prescribed time. The applicant did not contend that the ruling was unappealable or that an essential step was omitted. His complaints went to the merits of the intended appeal, which cannot be determined on a striking-out application.

p. 3
02

Timeliness of lodging and service of the notices of appeal

Holding

The notices were lodged within 14 days under rule 75(2). Although service outside the 7-day period under rule 77(1) was late, the delay was excused because the applicant's advocates' firm had closed following the death of its proprietor, and the late service was cured by rule 78.

Reasoning

The notices were lodged on 1st October 2013, within 14 days of the ruling. Service was delayed because the firm of Njoroge & Musyoka Advocates had been closed indefinitely after the death of Mr. Njoroge, reopening only at new premises. The court found these circumstances covered by rule 78, which prevents a notice of appeal from being incompetent for reasons of such inability to serve.

p. 4
03

Compliance with the 30-day time limit in the proviso to rule 84

Holding

The application was filed on 27th November 2013 and was out of time in respect of the notice of appeal dated 30th September 2013, though within time for the notice dated 27th September 2013.

Reasoning

The proviso to rule 84 requires a striking-out application to be brought within 30 days from the date of service of the notice of appeal or record of appeal. Counting from the dates of service deponed to in the applicant's own affidavit, the application was only within time as regards one of the two notices, rendering it fatally defective as regards the other.

p. 4

Legal principles established

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  • The grounds for striking out a notice of appeal under rule 84 are limited to those specified in the rule, namely that no appeal lies or that an essential step has not been taken or not taken within the prescribed time; other complaints are matters for argument at the hearing of the appeal.
  • A notice of appeal is not rendered incompetent by late service where service could not be effected because the firm of advocates on whom service was required had closed following the death of its proprietor; rule 78 cures such late service.

Court orders

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  1. 1.The application to strike out the notices of appeal dated 27th September 2013 and 30th September 2013 is dismissed
  2. 2.Costs of the application awarded to the respondents
On appeal from
High Court of Kenya at Nairobi
ELC Case No. 2484 of 1994
Jurisdiction invoked
Rule 84 of the Court of Appeal Rules - application to strike out 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, "Francis Wakahiu Theuri v Monica Njeri Esther Wangui Catherine Muthoni Francis Njuru Ngugi T/A Wawage Investment Company & 1 other", Case Analysis (2014). Civil Application No. NAI 323 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/467/eng@2014-07-11

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