Grace Wangui Ngenye v Tom Mshindi & 1 other
The bottom line
#The Court of Appeal struck out a late challenge to a notice of appeal because it was filed over two years past the 30-day legal deadline.
What this practically means
#Executive summary
#Key legal issues
#Whether an application to strike out a notice of appeal lodged beyond the 30-day period in the proviso to Rule 84 is competent
It is incompetent; the limitation period in the proviso is binding and was not extended under rule 4
The notice of appeal was served on 5th May 2016, as shown by the office stamp on the notice and conceded by the applicant's counsel. The application was filed on 14th June 2018, over two years later, far beyond the 30 days allowed by the proviso to Rule 84. No application for extension of time under rule 4 was made before lodging the application, so the limitation period was never extended, and counsel did not even respond to the competence objection.
Whether the notice of appeal naming Mbogholi Msagha J. instead of Mabeya J. was defective
No; the error was inadvertent and does not affect the validity of the notice of appeal
The judgment of Mabeya J. was delivered by Mbogholi Msagha J. on his behalf, and the notice of appeal described the judgment as that of Mbogholi Msagha J. The court held this misdescription was an inadvertent error of no consequence to the validity of the notice. However, this finding was obiter since the application itself was struck out as incompetent.
Legal principles established
#- An application to strike out a notice of appeal must be brought within 30 days of service of the notice of appeal or record of appeal, failing which it is incompetent and cannot be entertained unless time is extended under rule 4
- Where an application is incompetent, the court need not consider its merits
- A notice of appeal that misnames the judge who delivered judgment is not invalid where the error is inadvertent
Court orders
#- 1.The notice of motion seeking to strike out the notice of appeal was struck out
- 2.Costs of the application awarded to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 795 of 2005
- Jurisdiction invoked
- Inherent appellate jurisdiction of the Court of Appeal under Rule 84 of the Court of Appeal Rules, 2010 (application to strike out a notice of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Wangui Ngenye v Tom Mshindi & 1 other", Case Analysis (2019). Civil Application No. NAI 174 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/391/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.