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Court of AppealAllowedCivil Application No. 324 of 2014· [2015] KECA 398 (KLR)

Julie Mukami Kanyoko & 2 others v Samuel Mukua Kamere & another [2015] KECA 398 (KLR)

Court of Appeal
25 September 2015
2,446 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 a notice of appeal because the appellants kept missing deadlines and gave no credible explanation, ending that appeal.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Githinji, Mwilu and ole Kantai, JJ.A) on a Notice of Motion by the applicants, under rules 84, 42(1) and 43(1) of the Court of Appeal Rules, seeking to strike out the respondents' notice of appeal dated 26th November 2014. The respondents had obtained from Warsame, J an extension of time to file and serve a notice of appeal against an interlocutory ruling of Mutungi, J in ELC Civil Suit No. 229 of 2011. The applicants, who did not attend the hearing before Warsame, J, argued that the respondents' intended appeal was unarguable and that the respondents had persistently breached procedural timelines. The Court framed the sole issue as whether a case was made out to strike out the notice of appeal. It declined to disturb the extension of time, holding that the applicants' failure to attend the hearing entitled the judge to infer no objection. However, the Court found the respondents in persistent breach: they served the notice of appeal late, never applied for certified proceedings under the proviso to rule 84(1), filed no memorandum of appeal, and offered no credible explanation beyond a misplaced file. Invoking sections 3A and 3B of the Appellate Jurisdiction Act and the overriding objective, and endorsing Ratnam v Cunarasamy on obedience to rules of court, the Court allowed the application, struck out the notice of appeal, and awarded costs to the applicants, leaving the respondents free to litigate before the trial court at formal proof.

Key legal issues

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01

Whether the notice of appeal should be struck out for persistent non-compliance with the Court's rules

Holding

The notice of appeal was struck out. The respondents filed and served the notice late, never applied for certified proceedings, filed no memorandum of appeal, and gave no explanation for their dilatory conduct.

Reasoning

The Court exercised its unfettered but judicious discretion. The respondents exceeded the timelines fixed by Warsame, J, conceded late service, failed to apply for certified proceedings or a record of appeal, and offered only an unconvincing explanation of a misplaced file. The Court invoked the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act and Ratnam v Cunarasamy, holding that rules of court must prima facie be obeyed and that litigation must come to an end.

p. 3
02

Whether the extension of time granted by Warsame, J was properly granted despite the applicants' non-attendance

Holding

The Court declined to fault the extension of time, reasoning that the applicants' advocates, though aware of the hearing, failed to attend and the judge could reasonably infer no objection.

Reasoning

The applicants' advocates conceded service of the hearing notice but claimed non-service of the application itself. They wrote letters to the Deputy Registrar but did not appear before Warsame, J, and did not explain that non-attendance. The Court agreed the judge could infer there was no objection, though it noted it had information that could have impacted the exercise of his discretion.

p. 3

Legal principles established

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  • A party seeking extension of time must demonstrate the period of delay, explain it, and show the intended appeal is arguable without going into merits; the court must consider all relevant circumstances.
  • The rules of court must prima facie be obeyed; a party in breach has no unqualified right to an extension of time.
  • An appellant is not entitled to rely on the proviso to rule 84(1) unless the application for a copy of proceedings was in writing and served on the respondent.

Court orders

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  1. 1.The Notice of Motion dated 19th December 2014 is allowed
  2. 2.The notice of appeal dated 26th November 2014 is struck out
  3. 3.Costs of the application to the applicants

Authorities

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Legislation

  • Court of Appeal Rulesrule 84
  • Court of Appeal Rulesrule 42(1)
  • Court of Appeal Rulesrule 43(1)
  • Court of Appeal Rulesrule 75
  • Court of Appeal Rulesrule 82
  • Court of Appeal Rulesrule 84(1) proviso
  • Court of Appeal Rulesrule 84(2)
  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B

Cases cited (6)

  • Council, Jomo Kenyatta University of Agriculture and Technology v Joseph Mutuura Mbeera & 3 others
    [2015] eKLR
  • Samuel Njirani Ngabia v Michael Thungu Wanyoike & 2 others
    [2009] eKLR
  • Stanley Maina Mwangi v Sabina Wanjiru Mwangi
    [2009] eKLR
  • Kenya Tea Development Authority v Roy Transmotors Limited
    [2009] eKLR
  • Joseph Weteri Igweta v Mukira M'Ethare & Another
    CA No. NAI 8 of 2000
  • Ratnam v Cunarasamy
    [1964] 3 All ER 933
On appeal from
High Court of Kenya at Nairobi
ELC Civil Suit No. 229 of 2011
Jurisdiction invoked
Rules 84, 42(1) and 43(1) of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act

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, "Julie Mukami Kanyoko & 2 others v Samuel Mukua Kamere & another [2015] KECA 398 (KLR)", Case Analysis (2015). Civil Application No. 324 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/398/eng@2015-09-25

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