Salama Beach Hotel Limited & 4 others v Kenyariri & Associates Advocates & 4 others [2016] KECA 447 (KLR)
The bottom line
#The Court of Appeal struck out Salama Beach Hotel's appeal because the record lacked the court order appealed from and the notice of appeal was never properly lodged.
What this practically means
#Executive summary
#Key legal issues
#Time bar under the proviso to Rule 84
The advocates' strike-out application filed four months after service of the notice of appeal, without leave, is fatally defective and must be dismissed.
The proviso to Rule 84 mandates that strike-out applications be brought within thirty days of service of the notice of appeal or record of appeal. Service was effected on 2nd July 2015; the application was filed in November 2015. Following Joyce Bochere Nyamweya and William Mwangi Nguruki, the timelines are mandatory and a party caught by lapse of time must seek extension under Rule 4. No leave having been sought, the application fails.
Missing extracted impugned order in the record of appeal
Failure to extract and include the impugned order renders the appeal fatally defective and incurable, notwithstanding the overriding objective.
The order appealed from is a primary document under Rule 87(1)(h); without it the Court of Appeal cannot know what the High Court decided. Following Chege v Suleiman and Floris Pierro, the defect is incurable. The liberal approach under the overriding objective and the Constitution applies only to lapses of form not going to jurisdiction, and no attempt was made under Rule 88 to file a supplementary record.
Notice of appeal not lodged or endorsed
A notice of appeal that bears no endorsement by the (Deputy) Registrar showing date and time of lodging is incurably defective ab initio, as there is no evidence it was ever lodged.
Rule 75(1) requires the notice to be lodged in duplicate with the registrar; Rule 10 requires endorsement showing date and time of lodgment. The endorsement anchors the computation of all subsequent timelines (Rules 75(2), 77(1), 82, 83). Its absence throws the system into disarray and prejudices respondents. The fact that the Deputy Registrar later confirmed the documents were the same as filed in the High Court does not cure the defect.
Suo motu striking out despite dismissal of the strike-out application
The Court may, under its inherent power and the overriding objective in Sections 3A and 3B of the Appellate Jurisdiction Act, strike out an appeal on its own motion where primary documents are missing.
Following Mohamed Aden Abdi, dismissal of a time-barred strike-out application does not preclude the court from exercising its inherent power to strike out an appeal whose record lacks primary documents. Both defects here — the unextracted order and the unlodged notice — go to the Court's jurisdiction, so the overriding objective cannot save the appeal.
Legal principles established
#- An application to strike out a notice of appeal or an appeal under the proviso to Rule 84 must be brought within thirty days of service of the notice of appeal or record of appeal; failure renders the application fatally defective, and the remedy is an application for extension of time under Rule 4.
- An appeal that fails to include the extracted order or decree appealed from is fatally defective and incurable; the order or decree is a primary document under Rule 87(1)(h) and the only recourse is striking out.
- Failure to properly lodge the notice of appeal (with endorsement by the Registrar showing date and time) is a fatal defect which cannot be cured by the overriding objective.
- The court's discretion under Sections 3A and 3B of the Appellate Jurisdiction Act cannot cure lapses that go to the jurisdiction of the court.
- Even where a strike-out application is time barred and dismissed, the court retains inherent power to strike out an appeal suo motu where the record lacks primary documents.
Court orders
#- 1.The advocates' application (Civil Application No. 62 of 2015) to strike out the appeal dismissed for being time barred under the proviso to Rule 84
- 2.The former clients' application (Civil Application No. 48 of 2015) for stay of execution struck out
- 3.The appeal struck out suo motu for failure to include the extracted impugned order and for failure to duly lodge the notice of appeal
- On appeal from
- High Court of Kenya at Malindi
- H.C.C.C. No. 20 of 2015
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 75, 77, 84, 87(1)(h), 88 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salama Beach Hotel Limited & 4 others v Kenyariri & Associates Advocates & 4 others [2016] KECA 447 (KLR)", Case Analysis (2016). Civil Appeal/Application Nos. 48 and 62 of 2015 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/447/eng@2016-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.