Kericho Technical Institute v Finmax Community Based Group & 3 others [2016] KECA 478 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the appellant never served the notice of appeal or filed the record on time—deadlines matter.
What this practically means
#Executive summary
#Key legal issues
#Compliance with Rule 82(1) and (2) - institution of the appeal within 60 days
The respondents did not apply for typed proceedings within 30 days of the decision; the application was made only on 15th July 2015, after the applicant's motion, so the proviso to Rule 82(1) was unavailable and the record of appeal was filed out of time
The judgment was delivered on 24th March 2015 and amended on 22nd April 2015; the notice of appeal was lodged on 28th April 2015, so the record of appeal was due by 28th June 2015. The proviso to Rule 82(1) excludes certified delay only where the bespeaking application is made in writing within 30 days and served. The respondents applied for proceedings only on 15th July 2015, a week after the applicant filed the striking-out motion. The court found the certificate of delay was irregularly issued as no application was made until 15th July 2015.
Compliance with Rule 77(1) - service of the notice of appeal within seven days
The notice of appeal was not served within the required period; the contention that service was achieved by exhibiting the notice in a stay application was rejected, and the failure was not excused by Article 159(1)(d)
The court accepted that Article 159(1)(d) requires justice without undue regard to procedural technicalities, but reiterated this Court's precedents holding that service of the notice of appeal is mandatory and rooted in due process, safeguarding the right of affected parties to be heard. Annexing the notice to a stay application does not substitute for service under Rule 77(1).
Consequence of non-compliance under Rule 84
Because essential steps (service of the notice of appeal and filing of the record of appeal) were not taken within the prescribed time, the notice of appeal was struck out
Rule 84 permits a person affected by an appeal to apply at any time to strike out the notice or the appeal where an essential step has not been taken within the prescribed time. Having found the 7-day service requirement and the 60-day institution requirement breached, the court held the striking-out power was engaged and exercised it, with costs to the applicant.
Legal principles established
#- Failure to serve a notice of appeal on persons directly affected within the time prescribed by Rule 77(1) is a mandatory requirement and not a mere technicality; it renders the notice of appeal and the record of appeal incompetent, notwithstanding Article 159(1)(d) of the Constitution
- To benefit from the proviso to Rule 82(1) extending the 60-day period for instituting an appeal, an appellant must both apply for typed proceedings within 30 days of the decision and serve a copy of that application on the respondent under Rule 82(2)
- An application under Rule 84 to strike out a notice of appeal may be made on three grounds: that no appeal lies, that an essential step in the proceedings has not been taken, or that the essential step has not been taken within the prescribed time
Court orders
#- 1.The notice of appeal lodged on 28th April 2015 is struck out in accordance with Rule 84 of the Court of Appeal Rules
- 2.The applicant is awarded the costs of the motion
- On appeal from
- High Court
- Kericho High Court Civil Suit No. 20 of 2013
- Jurisdiction invoked
- Rules 82, 83 and 84 of the Court of Appeal Rules (application to strike out a notice of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kericho Technical Institute v Finmax Community Based Group & 3 others [2016] KECA 478 (KLR)", Case Analysis (2016). Civil Application No. 188 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/478/eng@2016-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.