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Court of AppealPartially AllowedCivil Appeal (Application) No. 311 of 2014· [2015] KECA 326 (KLR)

George Mwai Mburu v Mary Wamaitha Kaitany & another [2015] KECA 326 (KLR)

Court of Appeal of Kenya
16 October 2015
EGE. M. GithinjiJMJ. MohammedSKS. ole Kantai
2,267 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out an appeal filed over a year late, confirming that missing appeal deadlines cannot be excused under the Constitution.

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 26th November 2014 by Mary Wamaitha Kaitany and Nairobi City Council seeking striking out of George Mwai Mburu's record of appeal against the High Court judgment of Waweru, J dated 9th October 2012 in HCCS No. 687 of 2002, which had dismissed the appellant's claim over plots B1 and B2 along Kombo Munyiri Road, allowed the first respondent's counterclaim for mesne profits, and granted her vacant possession. The applicants argued that the appeal, filed on 7th November 2014, was lodged roughly 405 days outside the sixty-day period in rule 82 of the Court of Appeal Rules, with no extension of time sought. The appellant countered that he was awaiting a certified decree and certificate of delay, that no time limit governs issuance of such certificates, and that land matters should not be defeated on technicalities. The Court held the striking-out application itself competent under the thirty-day proviso to rule 84, having been filed on 28th November 2014 after service of the record on 10th November 2014. On timeliness, the Court found the proceedings were received on 24th July 2013, so the appeal was due on or about 25th September 2013; time taken to obtain a certificate of delay is not excluded by the proviso to rule 82. Relying on Patrick Kiruja Kithinji v Victor Mugira Marete, the Court held that filing out of time goes to jurisdiction and is not curable under Article 159. It allowed the application, struck out the record of appeal, and awarded the applicants the costs of the application. The decision below was not disturbed; this was an interlocutory striking-out ruling, and the effect is that the appellant's intended appeal never proceeded.

Key legal issues

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01

Timeliness of the striking-out application under the proviso to rule 84

Holding

The application was competently before the Court because it was filed within thirty days of service of the record of appeal on 10th November 2014, being filed on 28th November 2014

Reasoning

The proviso to rule 84 bars striking-out applications brought more than thirty days after service of the notice or record of appeal. Service occurred on 10th November 2014 and the motion was dated 26th November 2014 and filed on 28th November 2014, within the window. The respondent's submission that the applicants were themselves late was therefore misplaced.

02

Whether the record of appeal filed outside the sixty-day period under rule 82 is incompetent

Holding

The record of appeal was incompetent as it was filed on 7th November 2014, more than sixty days after receipt of the proceedings on 24th July 2013, without any application for extension of time

Reasoning

Under rule 82 an appeal must be instituted within sixty days of filing the notice of appeal, excluding only time certified by the registrar as required to prepare the proceedings. The proceedings were collected on 24th July 2013, so the appeal was due on or about 25th September 2013. The delay ran to 7th November 2014, and time for obtaining a certificate of delay is not excluded. Filing out of time without leave goes to jurisdiction and is not curable under Article 159.

p. 4

Legal principles established

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  • Whether or not an appeal is filed on time goes to the jurisdiction of the Court; an appeal filed out of time without leave cannot be salvaged under Article 159
  • An appellant must institute an appeal within sixty days under rule 82, excluding only the period certified by the registrar as required to prepare the proceedings; time taken to obtain a certificate of delay is not excluded
  • An application to strike out a notice or record of appeal may not be brought after the expiry of thirty days from the date of service of the notice or record of appeal

Court orders

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  1. 1.The application dated 26th November 2014 is allowed
  2. 2.The respondent's appeal (record of appeal filed on 7th November 2014) is struck out
  3. 3.The applicants shall have the costs of the application

Authorities

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Legislation

  • Court of Appeal RulesRule 82
  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 85(1)
  • Court of Appeal RulesRule 87(1) and (2)
  • Court of Appeal RulesRule 88
  • Court of Appeal RulesRule 92(3)
  • Constitution of KenyaArticle 159

Cases cited (2)

  • Lither Peter Muia & Another v Zuena Ngando Kababu
    (2015) eKLR
  • Patrick Kiruja Kithinji v Victor Mugira Marete
    [2015] eKLR
On appeal from
High Court of Kenya at Nairobi
HCCS No. 687 of 2002
Jurisdiction invoked
Rules 82, 84 and 88 of the Court of Appeal Rules (application to strike out an appeal; appellate jurisdiction under the court's inherent appellate oversight of appeals filed within the requisite time)

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, "George Mwai Mburu v Mary Wamaitha Kaitany & another [2015] KECA 326 (KLR)", Case Analysis (2015). Civil Appeal (Application) No. 311 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/326/eng@2015-10-16

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