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Court of AppealPartially AllowedCivil Appeal (Application) No. 48 of 2014· [2015] KECA 872 (KLR)

Patrick Kiruja Kithinji v Victor Mugira Marete [2015] KECA 872 (KLR)

Court of Appeal of Kenya
12 March 2015
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
1,589 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal filed late, confirming that missing appeal deadlines cannot be excused by citing Article 159 of the Constitution.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Visram, Koome & Odek, JJ.A) on an application under Rules 42(1) & 43(1), 82(1) & (2) and 84 of the Court of Appeal Rules to strike out an appeal against a ruling of Makau, J. delivered on 18th March, 2014 in H.C Succession Cause No. 96 of 2008 (Estate of Marete Ingetu, deceased), on the ground that it was filed out of time without leave. The Notice of Appeal was lodged on 27th March, 2014 and the Record of Appeal on 7th October, 2014. The applicant contended that the request for proceedings was never served on him, rendering the Certificate of Delay ineffective and the appeal 130 days late. The Court held that under Rule 82(2) an appellant cannot rely on the proviso to Rule 82(1) unless the application for proceedings was in writing and served on the respondent; since there was no service, time ran from 27th March and lapsed on 26th May, 2014. The respondent's invocation of Article 159 of the Constitution failed: timeliness of an appeal goes to jurisdiction, and an appeal filed out of time without leave is not a curable procedural technicality. The Court followed the Supreme Court's decision in Lemanken Aramat and allowed the application, striking out the appeal with costs to the applicant, while noting that the respondent remains at liberty to restart the appellate procedure by promptly seeking an extension of time.

Key legal issues

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01

Effect of failure to serve the request for proceedings on computation of time under Rule 82

Holding

Because the letter requesting proceedings was never served on the applicant, the respondent could not invoke the proviso to Rule 82(1); the 60-day period ran from 27th March, 2014 and expired on 26th May, 2014, making the appeal out of time.

Reasoning

Rule 82(2) expressly conditions reliance on the proviso to sub-rule (1) on a written application for a copy of the proceedings and service of a copy on the respondent. The applicant deposed that he was never served and the respondent never denied it. The exclusion of time for preparation of proceedings therefore did not apply, and the appeal filed in October 2014 was lodged long after the prescribed period expired.

p. 2
02

Whether Article 159 of the Constitution cures the late filing of an appeal

Holding

The late filing of an appeal is not a mere procedural technicality curable under Article 159; it goes to the jurisdiction of the Court, which extends only to appeals filed within time or out of time with leave.

Reasoning

Relying on the Supreme Court's decision in Lemanken Aramat, the Court distinguished defects affecting the competence of a cause from constitutional time-frames that open jurisdiction. Timeliness of appeals is an established condition of the Court's appellate jurisdiction; to treat late filing as curable would upset the clear principles governing institution of appeals and expand jurisdiction beyond the statutory scheme, which Article 159 cannot do.

p. 3
03

Consequence of striking out an appeal filed out of time

Holding

The appeal was struck out, but the respondent retains the liberty to restart the appellate procedure by promptly seeking an extension of time.

Reasoning

The Court allowed the strike-out application but, drawing on Jedida Alumasa v SS Kesitany, reminded the parties that striking out does not permanently bar the respondent: a litigant whose appeal is struck out may restart the appellate procedures if he comes to court promptly for an extension of time, at least to lodge a fresh notice of appeal.

p. 3

Legal principles established

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  • An appellant cannot rely on the proviso to Rule 82(1) of the Court of Appeal Rules unless the application for proceedings was in writing and a copy was served on the respondent; without such service, time runs from the filing of the notice of appeal.
  • Whether or not an appeal is filed on time goes to the jurisdiction of the Court; an appeal filed out of time without leave is not a procedural technicality curable under Article 159 of the Constitution.
  • A litigant whose appeal has been struck out may restart the appellate procedure if he comes to court promptly for an order extending time.

Court orders

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  1. 1.The applicant's application is allowed
  2. 2.The respondent's appeal filed on 7th October, 2014 (referenced in the order as 17th October, 2014) is struck out
  3. 3.The applicant shall have costs of this application

Authorities

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Legislation

  • Court of Appeal RulesRule 42(1)
  • Court of Appeal RulesRule 43(1)
  • Court of Appeal RulesRule 82(1) and (2)
  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 41
  • Court of Appeal RulesRule 115
  • Constitution of KenyaArticle 159

Cases cited (3)

  • Hon. Lemanken Aramat –vs- Harun Meitambei Lempaka & 2 others
    Petition No. 5 of 2014
  • Jedida Alumasa & 3 Others –vs- SS Kesitany
    Civil Application No. Nai. 337 of 1996
  • George Wachira Kirira –vs- Joe Maina Ruthuthi
    Civil Application No. Nyr. 11 of 2013
On appeal from
High Court of Kenya at Meru
H.C Succession Cause No. 96 of 2008
Jurisdiction invoked
Rules 42(1) & 43(1), 82(1) & (2) and 84 of the Court of Appeal Rules (application to strike out an appeal filed out of time)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Patrick Kiruja Kithinji v Victor Mugira Marete [2015] KECA 872 (KLR)", Case Analysis (2015). Civil Appeal (Application) No. 48 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/872/eng@2015-03-12

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