James Bundi Gitamo v Ezekiel Nyamweno [2018] KECA 793 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal filed years late because no extension of time was ever formally sought.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal filed outside the sixty-day period in Rule 82(1), without leave, is competent
The appeal was incompetent as it was filed long after the stipulated time and no extension of time was granted by the Court
Rule 82(1) requires lodging an appeal within sixty days of the notice of appeal, excluding only the time certified by the Registrar as needed for preparing and delivering proceedings. The Deputy Registrar certified that time up to 12th August 2011, and the certificate of delay was issued on 20th February 2014. Even computing from the later date, the sixty days expired around 21st April 2014, yet the appeal was filed on 31st March 2015. Counsel conceded the delay. No application for extension of time was made before or after lodging the appeal.
Whether the striking-out application under Rule 84 was competent
The application was competent because it was filed within thirty days of service of the record of appeal
The respondent applied under Rule 84 for striking out on the ground that the appeal was lodged out of time and without leave. The appellant did not file a replying affidavit. The court confirmed the application was filed within thirty days of service of the record of appeal and therefore properly before it.
Legal principles established
#- An appeal must be lodged within sixty days of the notice of appeal, with the Registrar-certified preparation time excluded; an appeal filed outside that period without an extension of time is incompetent and may be struck out under Rule 84.
- A court cannot entertain incompetent proceedings; a party who files out of time must formally apply for extension of time.
Court orders
#- 1.The respondent's application to strike out the appeal is allowed with costs to the applicant
- 2.Civil Appeal No. 27 of 2015 is struck out with costs to the respondent
- On appeal from
- High Court of Kenya at Kisii
- H.C.C.C. No. 51 of 1992
- Jurisdiction invoked
- Court of Appeal Rules, Rules 82(1) and 84 (appeal from High Court); the judgment does not invoke a specific constitutional provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Bundi Gitamo v Ezekiel Nyamweno [2018] KECA 793 (KLR)", Case Analysis (2018). Civil Appeal No. 27 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/793/eng@2018-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.