Trustees of the Kenya Assemblies of God v Suresh Kumar Sofat & 2 others [2016] KECA 311 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal filed late, confirming that missing appeal deadlines cannot be excused under constitutional fairness provisions.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the record of appeal was filed out of time
- 2.If so, whether the record of appeal should be struck out
Key legal issues
#Computation of the 60-day period for instituting an appeal under rule 82 of the Court of Appeal Rules
The 60 days run from the date the certified copies of proceedings were made available and collected (23rd May 2014), so the record of appeal ought to have been filed by 23rd July 2014; filing on 9th September 2014 was out of time.
The proviso to rule 82 excludes only time certified by the registrar as required for preparation and delivery of the copy of proceedings. Once the proceedings were collected on 23rd May 2014, the statutory clock resumed. Delay in obtaining the certificate of delay itself is not excluded time, as the certificate can be filed later via a supplementary record under rule 88.
Whether the overriding objective and Article 159(2)(d) can cure an appeal filed out of time
They cannot. Timely filing of an appeal is a jurisdictional requirement, and a defect going to jurisdiction cannot be cured by the overriding objective or Article 159.
Following Patrick Kiruja Kithinji v Victor Mugira Marete, the Court held that jurisdiction to entertain appeals exists only for appeals filed within the requisite time or out of time with leave. The Supreme Court's decision in Lemanken Aramat confirms that where the Constitution or statute ties a vital condition to the Court's power, the general discretion in Article 159 does not apply. Filing out of time is therefore not a mere technicality.
Legal principles established
#- Time taken to obtain a certificate of delay is not excluded in computing the 60-day period for lodging a record of appeal under the proviso to rule 82; the clock runs from collection of the certified proceedings.
- Whether or not an appeal is filed on time goes to the jurisdiction of the Court, and an appeal filed out of time is not curable under Article 159 of the Constitution.
- A litigant whose appeal is struck out may restart the appellate process by promptly seeking an extension of time to lodge a fresh notice of appeal.
Court orders
#- 1.The record of appeal filed on 9th September 2014 is struck out under Rule 84 of the Court of Appeal Rules
- 2.The appeal is struck out for being incompetent
- 3.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- E.L.C. No. 402 of 2013
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Appellate Jurisdiction Act and the Court of Appeal Rules (rules 82 and 84)
Relief refused
#The appellant's plea to sustain the appeal under Article 159(2)(d) of the Constitution and the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act
An appeal filed out of time goes to jurisdiction and is not curable under Article 159; the record having been filed outside the stipulated period, neither the overriding objective nor substantial justice can save it
Costs
Costs of the application awarded to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
we allow the motion by the 1st and 2nd respondents and do therefore strike out the record of appeal filed on 9 th September 2014 under Rule 84 of the Court Rules, with the result that the appeal is struck out for being incompetent.
we find that an appeal filed out of time is not curable under Article 159.
Time taken to obtain a certificate of delay is not excluded by proviso to rule 82.
the overriding principle is not the panacea of all ills and in every situation, and that a foundation for the application of the principle must be properly laid and the benefits of its application judicially ascertained.
Issues in the judgment
#The judgment inconsistently recites the suit property, referring in the plaint narrative to LR No. 209/11251 but quoting the motion orders as LR No. 209/11281, which the record notes was corrected by amendment on 19th March 2014.
The motion is described in the heading of paragraph [18] as dated 26th September 2014 while the body of the judgment states it was filed on 30th September 2014.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Trustees of the Kenya Assemblies of God v Suresh Kumar Sofat & 2 others [2016] KECA 311 (KLR)", Case Analysis (2016). Civil Appeal (Application) No. 258 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/311/eng@2016-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.