Michael Mwalo v Board of Trustees National Social Security Fund [2014] KECA 706 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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respondent, having lodged a notice of appeal but failed to file the record of appeal within 60 days, is deemed to have withdrawn the notice of appeal under Rule 83 of the Court of Appeal Rules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.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.Whether the striking-out application offends the 30-day time limit in the proviso to Rule 84
Key legal issues
#Computation of the 60-day period for instituting an appeal and the effect of a certificate of delay
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
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.
The 30-day limit in the proviso to Rule 84 for striking-out applications
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
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.
Restricting the scope of a striking-out application to procedural compliance, not the merits of the intended appeal
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
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.
Legal principles established
#- 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
#- 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
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
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
#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
Without evidence to the contrary, we are bound to accept the period of delay stated in the 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
Clearly, the application itself was brought out of time. For this reason and others, we have stated above
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.