Total Kenya Limited v Reuben Mulwa Kioko [2018] KECA 138 (KLR)
The bottom line
#The Court of Appeal struck out a late attempt to kill an appeal because it missed a strict 30-day filing deadline.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent's application to strike out the Notice and Record of Appeal was filed within the 30-day period prescribed by the proviso to Rule 84 of the Court of Appeal Rules and was therefore competent
- 2.Whether the appellant's failure to serve the Notice of Appeal and the Record of Appeal within the prescribed time, and the omission of the certified order from the Record, warranted striking out the Notice and Record of Appeal
Key legal issues
#Competency of the Rule 84 striking-out application filed outside the 30-day window
The application, filed on 29th December 2017 after service of the Record of Appeal on 15th November 2017, fell outside the 30-day period (adjusted for the Jamuhuri Day holiday) and was incompetent; it was struck out.
Rule 84 permits a person affected by an appeal to apply to strike out a notice or record of appeal, but its proviso bars any such application brought after thirty days from service of the notice or record. Service of the record on 15th November 2017 was not in dispute, so the deadline, extended for the Jamuhuri Day public holiday, expired on 18th December 2017. Filing on 29th December 2017 was out of time. Precedent of this Court confirms the proviso is mandatory and non-compliance is fatal.
Whether the Notice and Record of Appeal should be struck out for late service and omission of the certified order
The court did not reach the merits of the respondent's striking-out grounds because the application itself was incompetent; the Notice and Record of Appeal were not struck out.
The respondent argued under Rule 77(1) that the Notice of Appeal was never served, under Rule 90(1) that the record was served over five months late, and under Rule 87(h) that the certified order was omitted, relying on Bwana Mohamed Bwana. The appellant conceded late service but invoked Salat, urging the court to overlook an inadvertent error causing no prejudice. Because the application was out of time under the Rule 84 proviso, the court disposed of it on that threshold ground without determining these grounds.
Legal principles established
#- An application to strike out a notice of appeal or an appeal under Rule 84 must be brought within thirty days of service of the notice of appeal or record of appeal, and failure to comply renders the application incompetent and liable to be struck out.
- The time for computing the thirty-day period under the proviso to Rule 84 excludes public holidays, and the proviso is mandatory.
Court orders
#- 1.The application dated and filed in the Court on 29th December, 2017 is struck out
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- H.C.C.C. No. 27 of 2016
- Jurisdiction invoked
- Rule 84 of the Court of Appeal Rules (application to strike out a notice or record of appeal)
Relief refused
#Striking out of the Notice of Appeal and Record of Appeal sought by the respondent under Rule 84
The respondent's application itself was filed out of time under the proviso to Rule 84 and was therefore incompetent, so the court struck out the application rather than the appeal
Costs
We make no orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstances, we have no alternative but to strike out the application dated and filed in this Court on 29 th December, 2017 which we hereby do. We make no orders as to 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.
Accordingly, the application which was filed on 29th December, 2017 was out of time, incompetent and amenable to be being struck out.
In Joyce Bochere Nyamweya vs Jemima Nyaboke Nyamweya & Another [2016] eKLR, this Court held that parties are bound by the mandatory nature of the proviso to Rule 84 of the Rules and the failure to comply with the same renders an application filed thereunder defective.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Total Kenya Limited v Reuben Mulwa Kioko [2018] KECA 138 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 35 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/138/eng@2018-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.