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Court of AppealDismissedCivil Appeal No. 115 of 2015· [2015] KECA 209 (KLR)

Kyule Makau v Dominic Musei Ikombo [2015] KECA 209 (KLR)

Court of Appeal
20 November 2015
HOH. M. OkwenguGKG. B. M. KariukiFSF. Sichale
713 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that when a filing deadline lands on a public holiday or weekend, it moves to the next working day.

What this practically means

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Executive summary

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This was an interlocutory application before the Court of Appeal at Nairobi, not a substantive appeal. Kyule Makau Ikombo, the applicant, moved under a Notice of Motion dated 11th June 2015 to strike out the Notice of Appeal filed on 27th April 2015 and served on 4th May 2015, and the Record of Appeal filed on 13th May 2015. He argued that service of the Notice of Appeal fell outside the 14 days allowed by the Court's ruling of 17th April 2015 (in Civil Application No. 261 of 2014, granting the respondent, Dominic Musei Ikombo, extension of time), and that the Record of Appeal was incompetent as it was filed without leave. The respondent's counsel, Francis Mwanza Mulwa, deposed that the 14-day period expired on 1st May 2015, Labour Day, a public holiday excluded under Rule 3(b) of the Court of Appeal Rules; that Saturday 2nd and Sunday 3rd May were likewise excluded; and that the last day was therefore Monday 4th May 2015, on which the Notice was served. Filing had occurred on 27th April 2015, within time. The Record of Appeal, lodged on 13th May 2015 within the 30 days, was consequently competent and needed no further leave. The court, comprising Okwengu, G.B.M. Kariuki and Sichale, JJ.A, in a single ruling of the court, found no merit in the application, dismissed it, and awarded costs to the respondent. The effect is that the appeal process continued unaffected; no decision below was disturbed.

Key legal issues

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01

Computation of the 14-day period for service of the Notice of Appeal

Holding

The 14-day period expiring on 1st May 2015, a public holiday (Labour Day, a Friday), rolled over: Saturday 2nd and Sunday 3rd May were also excluded, making Monday 4th May 2015 the last day. Service on 4th May 2015 was therefore within time.

Reasoning

Rule 3(b) of the Court of Appeal Rules provides that where the last day of a period is a Sunday or public holiday, the period includes the next following day that is not an excluded day. Applying this, the public holiday and the intervening weekend were excluded from the computation, extending the last day to 4th May 2015. Filing on 27th April 2015 and service on 4th May 2015 thus complied with the order of 17th April 2015.

p. 2
02

Competence of the Record of Appeal filed without leave

Holding

Since the Notice of Appeal was filed and served within the stipulated period, no leave was needed and the Record of Appeal filed on 13th May 2015 within the 30 days was competent.

Reasoning

The respondent had been granted leave to file the Notice of Appeal within 14 days and the Record of Appeal within 30 days. Both steps were taken within those periods once time was correctly computed under Rule 3(b). The alleged defect in service did not arise, and an in-time Record of Appeal could not be struck off as incompetent for want of leave.

p. 2

Legal principles established

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  • In computing a period fixed by the Court of Appeal Rules or a court decision, if the last day is a Sunday or public holiday, the period extends to the next following day that is not an excluded day (Saturday and Sunday being likewise excluded), so filing and service on the next working day is within time
  • Where the Notice of Appeal is filed and served within the stipulated period, the Record of Appeal filed within the ordered period needs no further leave and cannot be struck out as incompetent

Court orders

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  1. 1.The Notice of Motion dated 11th June 2015 seeking to strike out the Notice of Appeal and Record of Appeal is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 3(b)
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal under its Rules (Court of Appeal Rules, Rule 3(b) on computation of time), on an application to strike out a Notice of Appeal and Record of Appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Kyule Makau v Dominic Musei Ikombo [2015] KECA 209 (KLR)", Case Analysis (2015). Civil Appeal No. 115 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/209/eng@2015-11-20

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