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Court of AppealDismissedCivil Application No. NAI 136 of 2013 (UR 93/2013)

Michael Mwalo v Board of Trustees National Social Security Fund [2014] KECA 706 (KLR)

Court of Appeal of Kenya
14 March 2014
2,038 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a bid to kill NSSF's appeal because the application itself was filed too late and the delay certificate protected the appeal timeline.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (Nambuye, Musinga and Ouko, JJ.A) on a notice of motion by Michael Mwalo seeking to strike out a notice of appeal lodged by the Board of Trustees of the National Social Security Fund, and to discharge stay-of-execution orders granted by the Industrial Court. The underlying labour dispute had been compromised by a consent judgment ordering payment of Kshs. 11,532,869 in terminal dues. The Fund failed to comply, arguing the consent was unauthorised under the National Social Security Fund Act; the Industrial Court (Ndolo, J.) dismissed its application to set the consent aside with costs. The Fund then lodged a notice of appeal but did not file the record within 60 days. Mwalo invoked Rules 82, 83 and 84 of the Court of Appeal Rules, contending the notice was deemed withdrawn. The Court held that under the proviso to Rule 82(1) the period certified in the certificate of delay - 73 days taken by the Industrial Court to prepare proceedings - was excluded from the computation, and absent evidence of forgery or fraud the certificate was binding. It further held that the striking-out application itself was fatally out of time under the proviso to Rule 84, having been filed more than 30 days after service of the notice of appeal. The Court declined to engage with the merits of the intended appeal or the consent judgment, lest it preempt the appeal and the pending extension-of-time application (Civil Application No. Nai 213 of 2013). The application was dismissed with costs to Mwalo on 14th March 2014.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent, having lodged a notice of appeal but failed to file the record of appeal within 60 days, is deemed to have withdrawn the notice of appeal under Rule 83 of the Court of Appeal Rules
  2. 2.Whether the period covered by the certificate of delay is excluded in computing the 60-day period under the proviso to Rule 82(1)
  3. 3.Whether the striking-out application offends the 30-day time limit in the proviso to Rule 84

Key legal issues

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01

Computation of the 60-day period for instituting an appeal and the effect of a certificate of delay

Holding

The period taken by the court below to prepare proceedings, as certified in a certificate of delay, is excluded in computing the 60 days; where the delay certified is added, the application was premature

Reasoning

The proviso to Rule 82(1) excludes the period certified by the registrar. The respondent applied for proceedings two days after the ruling, served the request on the applicant, and obtained a certificate confirming 73 days of court delay. In the absence of evidence of forgery or fraud, the certificate is binding, and the 60 days had not expired when the application was filed.

p. 4
02

The 30-day limit in the proviso to Rule 84 for striking-out applications

Holding

The applicant's striking-out application, filed 27th June 2013 after service of the notice of appeal on 21st March 2013, was filed way beyond the 30-day window and was itself out of time

Reasoning

The proviso to Rule 84 bars striking-out applications brought after 30 days from service of the notice of appeal. The court applied this strictly: service was on 21st March 2013 and the application was filed on 27th June 2013, well outside the period, which independently doomed the application.

03

Restricting the scope of a striking-out application to procedural compliance, not the merits of the intended appeal

Holding

Arguments about the validity of the consent judgment and the powers of the Managing Trustee versus the Board belong to the intended appeal and could not be determined on a striking-out application

Reasoning

The court observed that the respondent's submissions and five of its eight authorities concerned when a consent judgment may be set aside - matters for the intended appeal. Deciding them would preempt the appeal, so the court confined itself to the procedural questions under Rules 82, 83 and 84.

p. 2

Legal principles established

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  • The jurisdiction to strike out any part of the record is a draconian measure to be exercised only in the plainest cases and sparingly
  • A party relying on the proviso to Rule 82(1) must show it applied for proceedings within 30 days of the decision and copied the request to the other party; a certificate of delay is prima facie evidence of the period the court took to prepare proceedings and binds unless cogently challenged
  • An application to strike out a notice of appeal under Rule 84 must be brought within 30 days of service of the notice of appeal; an application filed outside that period is itself out of time and liable to dismissal

Court orders

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  1. 1.The application to strike out the notice of appeal and discharge the stay of execution orders is dismissed with costs to the applicant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
William Ouko
W. OukoJA
Currently serving
majority
On appeal from
Industrial Court of Kenya at Nairobi
Industrial Cause No. 1093 of 2012
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 1(2), 42(1)(2), 82(1), 83 and 84 of the Court of Appeal Rules

Relief refused

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Striking out the notice of appeal filed by the respondent

The application was out of time under the proviso to Rule 84 and, taking the certificate of delay into account, was prematurely brought; the court declined to preempt the intended appeal and the pending extension-of-time application

p. 4

Discharge of the stay of execution orders granted by the Industrial Court on 15th May 2013

The substratum of the application having failed, the stay orders were not disturbed

Costs

The application is dismissed with costs to the applicant (Michael Mwalo)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we come to the ultimate conclusion that the application lacks merit and is accordingly dismissed with costs
p. 4Final orders - dismissal of the striking-out application
Without evidence to the contrary, we are bound to accept the period of delay stated in the certificate of delay
p. 4Evidential weight of a certificate of delay
the jurisdiction to strike out any part of the record is a draconian measure and an affront to the rules of natural justice. It is to be resorted to only in the most plain cases and even then employed sparingly
p. 3Sparing exercise of the striking-out jurisdiction
Clearly, the application itself was brought out of time. For this reason and others, we have stated above
p. 4Rule 84 proviso - 30-day limit on striking-out applications

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, "Michael Mwalo v Board of Trustees National Social Security Fund [2014] KECA 706 (KLR)", Case Analysis (2014). Civil Application No. NAI 136 of 2013 (UR 93/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/706/eng@2014-03-14

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