Joshua Kipkorir Suing on behalf of the Estate of Kipsaina arap Mursoi (Deceased) v Ezekiel Kiplel & 7 others [2019] KECA 738 (KLR)
The bottom line
#The Court of Appeal struck out an appeal filed 14 months late without permission, confirming that late records of appeal will not survive.
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 in Civil Appeal No. 11 of 2018 was filed out of time without leave of the Court
- 2.Whether the applicant complied with Rule 84 of the Court of Appeal Rules in bringing the application
- 3.Whether the Record of Appeal should be struck out
Key legal issues
#Whether an appeal filed well outside the statutory period without leave can stand
The appeal having been filed 14 months after the date it ought to have been filed, and without leave to file out of time, the Record of Appeal was struck out.
The judgment was delivered on 27th April 2017 and the appeal ought to have been filed by 9th July 2017. It was instead filed on 12th September 2018, some 14 months late. The respondent to the application opposed only on points of law and filed no replying affidavit. The court was satisfied the delay was unexcused and that the applicant had complied with Rule 84 of the Court of Appeal Rules in moving the application.
Legal principles established
#- A Record of Appeal filed out of time without leave of the Court is liable to be struck out
Court orders
#- 1.Civil Appeal No. 118 of 2018 be and is hereby struck off the Record
- 2.The Notice of Motion dated 25th January, 2019 is allowed with costs to the 4th respondent and the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Court of Appeal Rules (Rule 84) and the Court's inherent power to strike out a Record of Appeal filed out of time without leave
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.
We are satisfied the Record of Appeal was filed 14 months late without leave of this Court.
Accordingly, we hereby order Civil Appeal No. 118 of 2018 be and is hereby struck off the Record. The Notice of Motion dated 25 th January, 2019 be and is hereby allowed with costs to the 4th respondent and the 1st respondent.
Issues in the judgment
#The judgment refers to the appeal as 'Civil Appeal No. 11 of 2018' in its opening but orders 'Civil Appeal No. 118 of 2018' struck off, creating an internal inconsistency in the appeal number.
The stated deadline and filing dates are internally slightly inconsistent: the appeal is said to have been filed on 12th September 2018, but it is also described as filed 'one year and two months out of time' and later as '14 months late'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joshua Kipkorir Suing on behalf of the Estate of Kipsaina arap Mursoi (Deceased) v Ezekiel Kiplel & 7 others [2019] KECA 738 (KLR)", Case Analysis (2019). Civil Appeal No. 11 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/738/eng@2019-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.