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Court of AppealPartially AllowedCivil Appeal No. 46 of 2014· [2015] KECA 470 (KLR)

Ransa Company Limited & 2 others v Manca Francesco

Court of Appeal of Kenya
31 July 2015
2,091 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an entire appeal filed just two days late, confirming strict appeal deadlines cannot be excused by Article 159's overriding objective.

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 Malindi (Asike-Makhandia, Ouko and M'inoti, JJ.A.) delivered on 31st July 2015 on an application under Rule 84 of the Court of Appeal Rules to strike out a notice of appeal and the entire record of appeal in Civil Appeal No. 46 of 2014, which had been lodged against a judgment of the High Court at Malindi (Meoli, J.) dated 18th February 2014. The applicants showed that the notice of appeal was filed two days late (sixteen days after judgment instead of fourteen), was never served on them or the Attorney-General until the hearing of the application, that the record of appeal was instituted six months after judgment, well outside the sixty-day period in Rule 82(1) & (2), and that several primary documents were omitted. The respondent attributed the failures to the court's delay in supplying proceedings, his former advocates' mistakes, and a misplaced file. The court held that failure to comply with Rules 75(2) and 82(1) goes to jurisdiction and renders the notice and record incompetent, and that the overriding objective under Article 159(2)(d) and Sections 3A and 3B of the Appellate Jurisdiction Act is not a panacea and cannot cure defaults for which the Rules provide specific remedies, such as extension of time under Rule 4 and supplementary records under Rule 88. The court also held that parties can no longer hide behind the excuse of their advocates' mistakes. It struck out both the notice of appeal and the record of appeal with costs to the applicants. The decision binds subordinate courts and the High Court on the jurisdictional consequences of non-compliance with Rules 75(2) and 82(1).

Key legal issues

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01

Whether a two-day delay in lodging a notice of appeal is excusable under the overriding objective

Holding

No. Without leave extending time and without any explanation, the length of the delay is immaterial; the notice of appeal was incompetent.

Reasoning

Rule 75(2) requires a notice of appeal to be lodged within fourteen days of the decision appealed against. Here it was lodged sixteen days after judgment, without any application for extension of time under Rule 4 and without explanation. The court held that the period of delay does not matter where there is no leave and no explanation, signalling that compliance with jurisdictional time limits cannot be excused merely because the delay is short.

p. 2
02

Whether failure to serve the notice of appeal within seven days under Rule 77(1) justified striking out

Holding

Yes. The notice of appeal was never served on the applicants or the Attorney-General until the day of the hearing of the application, breaching a mandatory requirement.

Reasoning

Rule 77(1) requires service of the notice of appeal on all persons directly affected within seven days. Service occurred only on the hearing date of the striking-out application, months late. The court treated this as an essential step not taken within the prescribed time, contributing to the notice's incompetence, alongside the late filing and the late institution of the appeal.

p. 2
03

Whether the court could invoke Article 159(2)(d) and Sections 3A & 3B to salvage the defective appeal

Holding

No. The inherent powers are residual and cannot apply where specific remedies under the Rules exist or where the default goes to jurisdiction.

Reasoning

The court synthesized the authorities: the overriding principle is not a panacea, must not be applied arbitrarily, has not uprooted precedent or rules of procedure, and cannot cure failure to comply with Rules 75(2) and 82(1), which renders a notice and record incompetent. Specific provisions (Rules 4 and 88) existed for extension of time and supplementary records, and the respondent failed to use them, resorting to Article 159 and Sections 3A & 3B only when the striking-out application was brought.

p. 4

Legal principles established

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  • Failure to lodge a notice of appeal within fourteen days under Rule 75(2) and to institute the appeal within sixty days under Rule 82(1) renders the notice and record of appeal incompetent and deprives the Court of jurisdiction; the overriding principle cannot cure such failure.
  • Where essential steps in an appeal are not taken within prescribed time, the period of delay, however short, is immaterial if unexplained and unaccompanied by leave to extend time.
  • The overriding objective under Article 159(2)(d) and Sections 3A & 3B is a residual power to be invoked only where no specific or alternative provision of law exists; parties cannot rely on it to excuse failures addressed by specific Rules.
  • Since the introduction of the overriding objective, parties can no longer shield their failures behind the excuse that their advocates' mistakes cannot be visited upon them.
  • The discretion under Rule 84 to strike out a notice or record of appeal must be exercised judicially, in accordance with the rule of reason and justice, not on whim or caprice.

Court orders

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  1. 1.The notice of appeal and the entire record of appeal are struck out
  2. 2.Costs awarded to the applicants
On appeal from
High Court of Kenya at Malindi
HCC No. 36 of 2014
Jurisdiction invoked
Rule 84 of the Court of Appeal Rules, with reference to Article 159(2)(d) of the Constitution and Sections 3A & 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, "Ransa Company Limited & 2 others v Manca Francesco", Case Analysis (2015). Civil Appeal No. 46 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/470/eng@2015-07-31

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