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Court of AppealPartially AllowedCivil Appeal No. 101 of 2014· [2015] KECA 252 (KLR)

Mukenya Ndunda v Crater Automobiles Limited [2015] KECA 252 (KLR)

Court of Appeal of Kenya
6 November 2015
HOH. M. OkwenguGKG. B. M. KariukiSKS. ole Kantai
3,659 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because the appellant missed filing deadlines, omitted the decree, and offered no explanation for the delays.

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 on a notice of motion dated 9th June 2014 by Mukenya Ndunda seeking to strike out the record of appeal and supplementary record of appeal filed by Crater Automobiles Limited against a judgment of Mabeya J of the High Court delivered on 28th September 2012 in H.C.C.C. No. 998 of 1999, a hire-purchase dispute in which the applicant had counterclaimed. The applicant argued the record was filed and served out of time, omitted the decree (a primary document), and that the supplementary record was filed without leave in breach of rule 88. The appellant relied on the proviso to rule 82, the certificate of delay, and Article 159(2)(d) of the Constitution. The Court held that striking out is a drastic remedy reserved for flagrant, deliberate, flippant or reckless default, but found the appellant's breaches plainly flagrant: the appeal, computed with the benefit of the proviso to rule 82, was due by 21st April 2014 yet filed on 6th May 2014 (16 days late) without any extension of time; service breached rule 90(1) by 17 days; the decree was omitted; and the supplementary record was filed out of time and without leave, with no plausible explanation offered. The Court allowed the motion, struck out both records, and awarded costs to the applicant. The underlying High Court judgment was not disturbed by this ruling.

Key legal issues

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01

Whether striking out an appeal for procedural default is warranted despite the overriding objective and Article 159(2)(d)

Holding

Striking out is a drastic remedy reserved for flagrant, deliberate, flippant or reckless default; where the appellant filed and served the record out of time, omitted the decree, and filed a supplementary record out of time without leave, offering no plausible explanation, striking out follows.

Reasoning

The Court balanced the section 3A and 3B Appellate Jurisdiction Act imperative of just, expeditious and proportionate resolution against the need to enforce rules, which offer certainty and prevent chaos and impunity. Article 159(2)(d) did not abolish fairness, consistency or precedent. The appellant's counsel was tardy, showed flagrant disregard for the rules, offered no explanation, and could have sought extension of time under rule 4 but did not. The 16-day filing delay and 17-day service delay were clear breaches. The record was therefore incompetent.

p. 6
02

Computation of the 60-day period for instituting an appeal under rule 82 and its proviso

Holding

Where the appellant applies for proceedings within 30 days of judgment, the time taken by the Deputy Registrar to prepare the proceedings is excluded; the 60 days run from notification that proceedings are ready, adjusted for weekends.

Reasoning

The certificate of delay showed the Deputy Registrar notified the appellant's advocates on 18th February 2014 that proceedings were ready. The period from judgment to that notification was excluded. Sixty days from 18th February 2014 expired on 19th April 2014, a Saturday, so the appellant had until Monday 21st April 2014. Filing on 6th May 2014 was 16 days out of time with no extension obtained. The one week taken to pay for and collect proceedings was excusable and not inordinate.

p. 6

Legal principles established

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  • The power to strike out an appeal for non-compliance with procedural rules must be exercised carefully and only where the default is flagrant, deliberate, flippant or reckless; where there is a plausible explanation, or the default is not flagrant and no unredressable prejudice is caused, the Court should be disinclined to strike out.
  • Rules of procedure are handmaidens of justice and must be enforced where they harmonise with sections 3A and 3B of the Appellate Jurisdiction Act; Article 159(2)(d) does not licence a departure from the rules without plausible explanation.
  • Where an appellant complies with the proviso to rule 82 by applying for proceedings within 30 days, the time certified by the registrar for preparation of proceedings is excluded in computing the 60-day period for instituting the appeal, and if the last day falls on a Saturday the appeal may be lodged on the next working day.
  • A decree is a primary document that must be included in the record of appeal under rule 87(1)(h); omission of a primary document renders the record incompetent (following Municipal Council of Kitale v Fedha).

Court orders

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  1. 1.The notice of motion dated 9th June 2014 is allowed
  2. 2.The record of appeal dated 6th May 2014 is struck out
  3. 3.The supplementary record of appeal dated 23rd May 2014 is struck out
  4. 4.Costs of the motion to be borne by Crater Automobiles Ltd

Authorities

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Legislation

  • Constitution of KenyaArticle 159 (cited as 159(3)(d))
  • The Appellate Jurisdiction Act, Cap 9Section 3A(1) and 3B(1)
  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 3
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 82(1) and proviso
  • Court of Appeal RulesRule 87(1)(h)
  • Court of Appeal RulesRule 88
  • Court of Appeal RulesRule 90(1)
  • Civil Procedure Rules (as cited in Iron & Steelwares Ltd v Martyrs & Co)Order XVI rule 2

Cases cited (8)

  • Municipal Council of Kitale v Fedha
    Civil Appeal No. 7 of 1983
  • Kiboro v Posta Telecom Corporation
    [1974] EA 155
  • Ratemo Oira T/A Ratemo Oira & Company Advocates v Blue Shield Insurance Co. Ltd
    [2010] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others
    [2013] eKLR
  • Municipal Council of Nyeri v Mwangi Mutahi Ruga & Another
    [2014] eKLR
  • Esso Petroleum Co. Ltd v Southport Corporation
    [1956] AC 218
  • Iron & Steelwares Ltd v Martyrs & Co.
    [1956] XXIII pg 175
  • D.T. Dobie & Co. (K) Ltd v Muchina
    [1982] KLR 1
On appeal from
High Court of Kenya, Nairobi
H.C.C.C. No. 998 of 1999
Jurisdiction invoked
Appellate jurisdiction under the Appellate Jurisdiction Act, Cap 9, including Section 3A(1) and 3B(1), and rule 1(2) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (19)

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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, "Mukenya Ndunda v Crater Automobiles Limited [2015] KECA 252 (KLR)", Case Analysis (2015). Civil Appeal No. 101 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/252/eng@2015-11-06

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