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Court of AppealDismissedCivil Application No. NAI 125 of 2011· [2015] KECA 926 (KLR)

Lither Peter Muia & Another v Zuena Ngando Kababu

Court of Appeal
27 February 2015
PWP. N. WakiSKS. Gatembu KairuJMJ. Mohammed
1,989 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to strike out a delayed appeal because the court itself caused much of the delay in producing typed proceedings.

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 (Waki, Gatembu Kairu and J. Mohammed, JJ.A) on an application by the administrators of the estate of Peter Muia Ndunda, deceased, to strike out a notice of appeal lodged by Zuena Ngando Kababu against a High Court ruling of 27th April 2009 (Rawal, J) which dismissed her objection to a grant of letters of administration. The applicants argued the respondent had taken over two years to institute the appeal and should not be aided in indolence. The respondent countered that the application was itself incompetent, having been filed outside the 30-day window in the proviso to rule 84, relying on C.Y.O. O v R.O.O. The Court held that the proviso to rule 84 does not apply where the complaint is failure to file the record of appeal within the rule 82 period, since a party with at least 60 days to institute an appeal cannot be penalised for not acting within 30 days; C.Y.O. O was distinguished. On rule 83, the Court found the respondent had not been proactive, but held the court bore a large share of the blame for the delay in producing typed proceedings. Applying Githara Chuchu and its facilitative duty under sections 3A and 3B of the Appellate Jurisdiction Act, the Court declined to strike out the notice, instead directing the Deputy Registrar to supply proceedings within 30 days and requiring the respondent to institute the appeal within 30 days thereafter, failing which the notice would stand deemed withdrawn with costs. The application was dismissed with costs abiding the appeal.

Key legal issues

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01

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

Holding

The application was competent; the proviso to rule 84 targets defects such as late lodging or service of the notice, lack of leave, or no appeal lying, not delay in filing the record of appeal

Reasoning

Rule 84's proviso imposes a 30-day limit from service of the notice of appeal. But a strike-out on the ground of failure to institute the appeal cannot be mounted before the 60-day rule 82 period expires. Applying the 30-day limit here would impermissibly shorten the rule 82 period, so C.Y.O. O v R.O.O is distinguishable.

p. 3
02

Whether the notice of appeal should be deemed withdrawn under rule 83

Holding

The notice was not struck out; the respondent was given a chance to prosecute the appeal because the delay was largely attributable to the court and she had taken initial steps

Reasoning

The respondent lodged a notice of appeal, requested typed proceedings two days after the ruling, and notified the applicants of her intention. Although she was not fully proactive, the court bore a large share of the blame for the delay. Facilitating a just and expeditious resolution under sections 3A and 3B favoured allowing her to proceed, with strict timelines imposed.

p. 3

Legal principles established

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  • The 30-day time limit in the proviso to rule 84 does not apply to an application to strike out a notice of appeal on the ground that the record of appeal has not been filed within the rule 82 period
  • A party cannot be penalised for failing to do an act in 30 days when the rules allow at least 60 days to perform it
  • Delay in procuring typed proceedings cannot be blamed solely on the appellant where the court bears part of the blame

Court orders

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  1. 1.The Registrar of the Court to serve the Ruling on the Deputy Registrar of the High Court within 7 days of delivery
  2. 2.The Deputy Registrar of the High Court to supply the parties with typed proceedings and ruling within 30 days of service, upon payment of requisite charges
  3. 3.The respondent to institute the appeal within 30 days from compliance with the supply of proceedings, failing which the notice of appeal shall be deemed withdrawn with costs to the applicants pursuant to rule 83
  4. 4.The application dated 16th May 2011 fails and is dismissed

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3A and 3B
  • Court of Appeal Rulesrule 82
  • Court of Appeal Rulesrule 83
  • Court of Appeal Rulesrule 84 and proviso

Cases cited (2)

  • C.Y.O. O v R.O.O
    Civil Appeal No. 148 of 2009 [2011] eKLR

    That the proviso to rule 84 sets a time limit for invoking it and a motion filed out of time is liable to striking out

  • Githara Chuchu and 473 others v Kenya Planters Co-operative Union Ltd
    Civil Application No Nai 337 of 2013 [2014] eKLR

    Delay in procuring typed proceedings cannot be blamed solely on the appellant; time frames should be set for expeditious disposal

On appeal from
High Court of Kenya at Nairobi
Succession Cause No. 2833 of 2004
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; rules 82, 83 and 84 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 (8)

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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, "Lither Peter Muia & Another v Zuena Ngando Kababu", Case Analysis (2015). Civil Application No. NAI 125 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/926/eng@2015-02-27

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