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Court of AppealDismissedCivil Application No. 254 of 2016· [2017] KECA 178 (KLR)

Pravin Vora t/a Vora Construction v Synresins Limited [2017] KECA 178 (KLR)

Court of Appeal of Kenya
17 November 2017
KKKihara KariukiASAsike-MakhandiaWilliam OukoW. Ouko
1,261 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a late attempt to strike out an appeal, confirming that such applications must be filed within thirty days of service, no exceptions.

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 (Kihara Kariuki, PCA, Makhandia and Ouko, JJ.A.) on a motion by Pravin Vora t/a Vora Construction seeking to strike out a notice of appeal lodged by Synresins Limited against the judgment of Sergon, J. delivered on 19th February 2016, which dismissed Synresins' suit with costs and entered judgment for the applicant on a counter-claim of Kshs 5,000,000 for breach of contract. The applicant, who had obtained a conditional stay order under which the decretal sum was deposited in a joint interest-earning account, argued that the respondent had taken no step towards procuring typed proceedings and had not paid the typing deposit, contrary to Rules 83 and 84 of the Court of Appeal Rules. The respondent attributed the delay to an understaffed High Court typing pool and lack of response from the Deputy Registrar, and asserted there was evidence of payment for proceedings. The court framed a single issue: whether the notice of appeal should be struck out. Without deciding the substantive merits of the alleged inaction, the court held that the application was incompetent because it was not brought within thirty days of service of the notice of appeal as required by the proviso to Rule 84. The application was dismissed with costs, but the court issued conditional case-management orders directing the respondent to file and serve the record of appeal within sixty days, with the notice of appeal deemed withdrawn or struck out in default.

Key legal issues

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01

Timeliness of an application to strike out a notice of appeal under Rule 84

Holding

The application was incompetent because it was brought outside the thirty-day window in the proviso to Rule 84, counted from service of the notice of appeal.

Reasoning

Rule 84 confers three grounds for striking out a notice of appeal but the proviso imposes a strict thirty-day time limit running from service of the notice of appeal or record of appeal. The applicant sought striking out on the ground that the respondent had taken no step since filing the notice, including non-payment of the typing deposit. The court held the applicant had not complied with the proviso, so the application failed regardless of the merits of the alleged inaction.

p. 2

Legal principles established

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  • An application to strike out a notice of appeal or an appeal under Rule 84 must be brought within thirty days from the date of service of the notice of appeal or record of appeal, failing which it is incompetent.
  • Rule 84 permits striking out a notice of appeal on three grounds only: that no appeal lies, that an essential step has not been taken, or that an essential step has not been taken within the prescribed time.

Court orders

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  1. 1.Application dated 15th November 2016 dismissed with costs to the respondent
  2. 2.Respondent to file and serve the memorandum and record of appeal within sixty days of the date of the ruling
  3. 3.Record of appeal to be served on the advocates on record for the applicant within seven days of the date of filing
  4. 4.In default of order (i), the notice of appeal lodged on 7th March 2016 deemed duly withdrawn under Rule 83 without further application, with costs to the respondent
  5. 5.In default of order (ii), the notice of appeal and record of appeal to be struck out without further application, with costs to the respondent
  6. 6.Upon compliance with orders (i) and (ii), the appeal to be heard and disposed of expeditiously

Authorities

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Legislation

  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 83
  • Court of Appeal RulesRule 50
On appeal from
High Court of Kenya at Nairobi
Nairobi H.C.C.C No. 1095 of 2003
Jurisdiction invoked
Rule 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 (1)

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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, "Pravin Vora t/a Vora Construction v Synresins Limited [2017] KECA 178 (KLR)", Case Analysis (2017). Civil Application No. 254 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/178/eng@2017-11-17

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