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Court of AppealOtherCivil Appeal (Application) No. 3 of 2015

Okeno & Sons Building Contractors v Bukura Agricultural College [2016] KECA 702 (KLR)

Court of Appeal
4 March 2016
David Kenani MaragaD. K. MaragaDMD. K. MusingaSKS. Gatembu Kairu
756 words in judgment
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The bottom line

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The Court of Appeal confirmed that applications to strike out an appeal must be filed within 30 days of service, or they are dead on arrival.

What this practically means

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Executive summary

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Bukura Agricultural College, the respondent, applied under Rule 42 of the Court of Appeal Rules to strike out an appeal lodged by Okeno & Sons Building Contractors. The appeal challenged a High Court ruling at Kakamega (G. Dulu, J., delivered by A. C. Mrima, J. on 23rd October 2014) that partially allowed an application under Section 35 of the Arbitration Act by setting aside Kshs. 4,000,000.00 of an arbitral award made on 13th August 2013. The respondent argued that the appeal was filed out of time and without leave, that no appeal lies from a decision on a section 35 setting-aside application, and that the appeal contravened the principles of limited judicial intervention in arbitration and finality of awards. The appellant opposed, contending inter alia that the application was incompetent because it was not presented within the thirty-day period prescribed by rule 84 of the Court of Appeal Rules, and that leave to appeal had been granted by consent. The appellant's uncontested affidavit showed service of the notice of appeal on 12th November 2014 and of the record of appeal on 21st January 2015. The Court of Appeal held that the proviso to rule 84, which bars strike-out applications brought more than thirty days after service of the notice or record of appeal, is self-explanatory and mandatory. The application, filed on 5th August 2015, was hopelessly out of time and therefore incompetent. The court struck it out with costs to the appellant, without reaching the substantive objections to the appeal. The underlying appeal remains undetermined by this ruling.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent's application to strike out the appeal was filed within the thirty-day period prescribed by the proviso to rule 84 of the Court of Appeal Rules
  2. 2.Whether the application, filed out of that period, is competent

Key legal issues

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01

Time limit for applications to strike out an appeal under rule 84

Holding

The proviso to rule 84 bars any application to strike out a notice of appeal or an appeal brought more than thirty days after service of the notice of appeal or record of appeal, and such a late application is incompetent.

Reasoning

The court applied the plain terms of rule 84. The record of appeal was served on 21st January 2015, yet the strike-out application was filed on 5th August 2015. The proviso is unqualified and mandatory, so once the thirty-day period expired the court had no discretion to entertain the application. The court did not reach the substantive grounds urged by the respondent (lateness of the appeal, no appeal lying from a section 35 Arbitration Act decision, public policy).

p. 2

Legal principles established

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  • An application under rule 84 to strike out a notice or record of appeal must be brought within thirty days of service of the notice of appeal or record of appeal, whichever applies; beyond that window the application is incompetent.

Court orders

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  1. 1.The respondent's application to strike out the appeal struck out
  2. 2.Costs of the application to the appellant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority
DM
majority
SK
majority
On appeal from
High Court of Kenya at Kakamega
H.C Misc. Civil Application No. 206 of 2013
Jurisdiction invoked
Rule 42 of the Court of Appeal Rules (application to strike out an appeal)

Relief refused

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Respondent's application to strike out the appellant's appeal

Filed after the expiry of the thirty-day window under the proviso to rule 84

p. 2

Costs

Costs of the application to the appellant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That rule is self-explanatory. By the time the present application was filed on 5 th August 2015, the thirty day window provided under the proviso to rule 84 for doing so had long since been shut.
p. 2Time bar under proviso to rule 84
The application is therefore incompetent and the same is hereby struck out with costs to the appellant.
p. 2Final orders - striking out and costs
Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days from the date of service of the notice of appeal or record of appeal as the case may be.
p. 2Rule 84 proviso quoted

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Okeno & Sons Building Contractors v Bukura Agricultural College [2016] KECA 702 (KLR)", Case Analysis (2016). Civil Appeal (Application) No. 3 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/702/eng@2016-03-04

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