Munir Abubakar Masoud (As member of Tawheed Muslim Association) v Ali Abdalla Salim & another [2018] KECA 189 (KLR)
The bottom line
#Kenya's Court of Appeal ruled an appeal filed late cannot be saved by the Constitution's technicalities rule; late appeals need the court's prior permission or face being struck out.
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 Record of Appeal filed on 13th February, 2018 was filed out of time after taking into account the certified period for preparation of proceedings and the Christmas vacation
- 2.What is the consequence of filing a Record of Appeal out of time without leave of the Court
Key legal issues
#Computation of the 60-day period for filing a Record of Appeal, including exclusion of certified preparation time and the Christmas vacation
Time began to run when the certified proceedings were ready on 16th November, 2017; the Christmas vacation (21st December 2017 to 12th January 2018) was excluded, so the deadline was 6th February, 2018, and a Record filed on 13th February, 2018 was out of time.
Rule 82(1) requires filing within 60 days of the Notice of Appeal, but the proviso excludes periods certified by the Registrar as spent preparing proceedings. The certificate of delay showed 42 days were taken, making proceedings ready on 16th November 2017. Section 26(1)(c) of the Court of Appeal (Organization and Administration) Act, 2015 excludes the Christmas vacation. Counting 35 days to 21st December and resuming on 13th January 2018 yielded a deadline of 6th February 2018.
Consequence of filing a Record of Appeal out of time without leave
The Record must be struck out because timeliness goes to jurisdiction; the defect is not curable under Article 159. However, the Court may suspend striking out to permit an extension-of-time application in the interest of justice.
Relying on Patrick Kiruja Kithinji v Victor Mugira Marete, the Court held that an appeal filed out of time without leave is outside its jurisdiction and Article 159 cannot cure the defect. The Court nonetheless exercised discretion in the interest of justice, suspending the striking-out for two months so the appellant could seek extension of time under Rule 4.
Legal principles established
#- An appellant must file the Record of Appeal within 60 days of lodging the Notice of Appeal, excluding any period certified by the Registrar as expended in preparing proceedings; failure to do so without leave deprives the Court of jurisdiction.
- The defect of a late-filed appeal is jurisdictional and cannot be cured by Article 159's override of procedural technicalities.
- A Record of Appeal filed out of time without leave must be struck out; the consequence of a late filing is striking out, though the Court may in the interest of justice suspend striking out to allow an extension-of-time application.
Court orders
#- 1.The Record of Appeal filed out of time without leave is liable to be struck out, but the order striking out is suspended for two months from the date of the ruling to enable the appellant to file an application for extension of time under Rule 4
- 2.If the appellant obtains extension of time within the two months, his appeal will be deemed to have been filed within time
- 3.If the appellant does not succeed in obtaining extension of time, the appeal shall stand struck out with costs
- 4.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court
- E.L.C Case No. 78 of 2015
- Jurisdiction invoked
- Court of Appeal Rules, particularly Rule 82(1) and Rule 4; Section 26(1)(c) of the Court of Appeal (Organization and Administration) Act, 2015; Article 159(2)(d) of the Constitution invoked by the appellant
Relief refused
#The appellant's plea that the late filing be excused under Article 159(2)(d) (substantive justice over procedural technicalities)
A late filing without leave goes to jurisdiction and is not curable under Article 159
Substantive validation of the Record of Appeal as filed within time
Computation of time showed the Record was filed late; the appellant should have filed on or before 6th February, 2018
Costs
The costs of this application are awarded to the respondents; if the appellant does not obtain extension of time within two months, the appeal will stand struck out with 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.
whether or not an appeal is filed on time goes to the jurisdiction of this Court.
we find that an appeal filed out of time is not curable under Article 159.
In the event that the appellant succeeds in obtaining extension of time within the next two months, his appeal will be deemed to have been filed within time.
If he does not succeed the appeal herein will stand struck out with costs. The costs of this application are awarded to the respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munir Abubakar Masoud (As member of Tawheed Muslim Association) v Ali Abdalla Salim & another [2018] KECA 189 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 15 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/189/eng@2018-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.