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Court of AppealDismissedCivil Application No. 16 of 2016· [2017] KECA 561 (KLR)

Dauglas Ngunchiri Wainchungo v Paul Lagat & 8 others [2017] KECA 561 (KLR)

Court of Appeal
27 April 2017
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
613 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot kill an appeal just because it looks weak — striking out only works where no appeal lies or a step was missed.

What this practically means

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Executive summary

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This was a ruling of the Court of Appeal at Eldoret (Musinga, Gatembu Kairu and Murgor, JJ.A) on the applicant's notice of motion dated 18th February 2016 seeking, under Rule 84 of the Court of Appeal Rules, to strike out the respondents' appeal (Eldoret Civil Appeal No. 48 of 2015) filed on 11th January 2016 against a judgment and decree of the High Court at Kitale (E. Obaga, J.) dated 10th December 2014 in H.C.C.C No. 92 of 2004. Counsel for the applicant argued that the respondents' real grievance was with a decision of 17th September 2014 declining an adjournment, against which no notice of appeal was filed, and that the grounds of appeal did not touch the judgment appealed from, rendering the appeal incompetent. The respondents did not appear despite service. The court set out Rule 84, which permits striking out where no appeal lies or where some essential step in the proceedings has not been taken or has not been taken within the prescribed time, subject to a thirty-day time limit from service of the notice of appeal or record of appeal. Holding that the applicant had not demonstrated either ground, and that his complaint went to the substance and merits of the appeal, matters for the hearing of the appeal, the court dismissed the application and, since the respondents did not appear to oppose it, made no orders as to costs. The decision binds subordinate courts and the High Court on the proper scope of Rule 84 striking-out applications.

Key legal issues

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Whether a complaint that the memorandum of appeal does not engage the judgment appealed from is a valid ground for striking out an appeal under Rule 84

Holding

No. Rule 84 striking out is confined to cases where no appeal lies or an essential step in the proceedings has not been taken within the prescribed time; objections to the substance or merits of an appeal are reserved for the hearing of the appeal.

Reasoning

Rule 84 confines striking out to two grounds: that no appeal lies, or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time, and it imposes a 30-day time limit from service of the notice of appeal or record of appeal. The applicant argued the appeal was incompetent because no notice of appeal lay against the 17th September 2014 adjournment ruling and the grounds of appeal did not touch the judgment appealed from. The court held the applicant had not demonstrated either Rule 84 ground; the complaint went to the substance and merits of the appeal, which must be addressed at the hearing of the appeal.

p. 2

Legal principles established

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  • To succeed on an application under Rule 84 to strike out an appeal, the applicant must demonstrate that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time; a complaint going to the substance or merits of the appeal is not a proper ground for striking out and must be addressed at the hearing of the appeal.
  • Merits-based objections to an appeal cannot be resolved on a striking-out application; they are matters for the substantive hearing of the appeal.

Court orders

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  1. 1.The applicant's application dated 18th February 2016 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 84
On appeal from
High Court of Kenya at Kitale
H.C.C.C No. 92 of 2004
Jurisdiction invoked
Rule 84 of the Court of Appeal Rules (application to strike out an appeal)

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, "Dauglas Ngunchiri Wainchungo v Paul Lagat & 8 others [2017] KECA 561 (KLR)", Case Analysis (2017). Civil Application No. 16 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/561/eng@2017-04-27

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