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Court of AppealOtherCivil Application No. NAI 174 of 2018· [2019] KECA 391 (KLR)

Grace Wangui Ngenye v Tom Mshindi & 1 other

Court of Appeal of Kenya
19 July 2019
1,321 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Githinji, Visram and J. Mohammed, JJ.A) on a notice of motion dated 14th June 2018 by Grace Wangui Ngenye seeking to strike out a notice of appeal filed by Tom Mshindi and The Standard Group Limited against a High Court judgment of Mabeya J. of 24th February 2016 awarding her Shs. 8.5 million in libel damages, and further seeking vacation of an order of L. Njuguna J. of 14th July 2017 allowing partial release of the decretal sum. The respondents, who had filed their notice of appeal one day late due to counsel's mistake, opposed the application. The court did not reach the merits. It determined first whether the striking-out application was competent, given that the proviso to Rule 84 of the Court of Appeal Rules bars such applications brought more than 30 days after service of the notice of appeal or record of appeal. The notice of appeal had been served on 5th May 2016, as the applicant conceded, yet the application was filed on 14th June 2018 - over two years later. No extension of time under rule 4 had been sought, and counsel did not even respond to the competence objection. Relying on its own decision in Pickwell Properties Limited v Kenya Commercial Bank, the court held the application incompetent and struck it out, awarding costs to the respondents. The intended appeal thus remains on foot; the substantive challenge to the notice of appeal was never adjudicated on its merits.

Key legal issues

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01

Whether an application to strike out a notice of appeal lodged beyond the 30-day period in the proviso to Rule 84 is competent

Holding

It is incompetent; the limitation period in the proviso is binding and was not extended under rule 4

Reasoning

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.

p. 2
02

Whether the notice of appeal naming Mbogholi Msagha J. instead of Mabeya J. was defective

Holding

No; the error was inadvertent and does not affect the validity of the notice of appeal

Reasoning

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.

p. 1

Legal principles established

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  • 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

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  1. 1.The notice of motion seeking to strike out the notice of appeal was struck out
  2. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.