Banking Insurance & Finance Union (Kenya) v Murata Sacco Society Ltd
The bottom line
#Kenya's Court of Appeal struck out a Sacco's appeal notice after three years of inaction, confirming appeal deadlines are mandatory.
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 notice of appeal dated 13th October 2014 should be struck out for failure to file and serve the record of appeal within the prescribed time
- 2.Whether the respondent's delay of over three years was excusable on the ground that proceedings had not been supplied by the registry
Key legal issues
#Mandatory 60-day period for filing record of appeal under Rule 82(1)
The respondent was mandatorily required to file the record of appeal within sixty days of the notice of appeal; the time for preparation of proceedings is excluded only if the request was in writing and copied to the respondent.
Rule 82(1) imposes an inflexible time limit. The proviso excludes only such time as the registrar certifies as required for preparation of proceedings, and only where the request was in writing and copied to the respondent in the appeal. Here the request was made timeously and copied, but the respondent then took no steps to follow up the proceedings for over three years.
Duty of diligence on an intending appellant
A litigant desirous of appealing must actively pursue its rights; responsibility for timeliness cannot casually be cast on registries, and courts will strike out notices of appeal not followed by institution of appeals.
The respondent and its advocates 'literally went to sleep' after requesting proceedings, making no reminder or follow-up for over three years. The times set by the Rules are meant to be obeyed; non-reckoning of preparation time is the exception, not the general rule. A cavalier attitude towards timelines warrants striking out.
Effect of lapse of time on a notice of appeal
Under Rule 83 a notice of appeal is deemed withdrawn after the appointed time lapses, and the Court may strike it out even on its own motion.
The Court adopted its prior statements that a notice of appeal dies a natural death after expiry of 60 days unless extended by lodgment of the appeal or a Rule 4 extension order, and that the Court has inherent power to make the formal order of the notice having been deemed as withdrawn as a house-cleaning measure.
Legal principles established
#- An appellant must file the record of appeal within sixty days of the notice of appeal, and the exclusion of time for preparation of proceedings applies only where the request was in writing and copied to the respondent.
- An intending appellant must be diligent in pursuing proceedings; a litigant cannot simply wait passively for the registry, and the Court will strike out notices of appeal not followed by institution of appeals.
- Whether or not an appeal is filed within time goes to the jurisdiction of the Court and is not a mere technicality curable under Article 159.
Court orders
#- 1.The notice of appeal dated 13th October 2014 is struck out
- 2.Costs of the application awarded to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment & Labour Relations Court
- E.L.R.C. No. 616 of 2010
- Jurisdiction invoked
- Rules 80, 83 and 82(1) of the Court of Appeal Rules (application to strike out a notice of appeal)
Relief refused
#Respondent's request to be allowed time to file the record of appeal
Inordinate delay of over three years with no effort to follow up on proceedings was unanswerable
Costs
The application was granted with costs to the applicant.
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.
The times set by the Rules are meant to be obeyed and the non-reckoning of the time for preparation of proceedings ought to be the exception, and not the general rule.
A cavalier and indifferent attitude towards timelines is to be frowned upon and this Court, when moved as we have been moved, will not hesitate to strike out a notices of appeal that have not been followed by the institution of appeals
Inevitably, therefore, the application before us succeeds and we grant it with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking Insurance & Finance Union (Kenya) v Murata Sacco Society Ltd", Case Analysis (2018). Civil Application No. 111 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/878/eng@2018-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.