Kadzo Madago & 1 other v Charo Katana Kenga
The bottom line
#Kenya's Court of Appeal struck out an appeal filed late without permission, confirming you must first get leave to file out of time before anything else.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal filed out of time without leave is competent
An appeal filed outside the prescribed time without leave is incompetent and must be struck out under Rule 84 of the Court of Appeal Rules.
The respondent conceded that the record of appeal was filed late, well beyond the 60 days ordered by the High Court. In the absence of leave enlarging time, the appeal is a nullity. Arguments about the delay not being inordinate, chances of success and absence of prejudice are relevant only to an application under Rule 4 before a single Judge, not to a strike-out application. The proper procedure is to first seek leave to enlarge time.
Whether the court would overlook procedural defects in the applicants' application
The court, in the interest of substantive justice under Article 159(2)(d), overlooked the invocation of wrong provisions in the application since it could be located within Rule 84 of the Court of Appeal Rules.
The application was sloppily drawn, invoking inapplicable provisions of the Civil Procedure Act and Appellate Jurisdiction Rules, a copy-pasting practice the court deprecated. Nonetheless, applying the overriding objective of substantive justice, the court located the application within Rule 84, which permits a person affected by an appeal to apply to strike it out where an essential step was not taken within the prescribed time, and the application was filed within the 30-day window.
Legal principles established
#- A record of appeal filed out of the prescribed time and without leave is incompetent and cannot be sustained.
- A party facing an application under Rule 84 to strike out an untimely appeal must first seek enlargement of time under Rule 4; the merits-of-appeal arguments belong before a single Judge.
Court orders
#- 1.The record of appeal filed by the respondent on 5th July, 2017 is struck out
- 2.No order as to costs
- On appeal from
- High Court at Malindi
- H.C. Succ. Cause No. 106 of 2014
- Jurisdiction invoked
- Rule 84 of the Court of Appeal Rules; Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Charles P.O. Nyamunga & 68 others v Maseno University [2020] KEELRC 183 (KLR)[2020] KEELRC 183 (KLR)27 Nov 2020
Cite this brief
#Cite this brief
Caselaw, "Kadzo Madago & 1 other v Charo Katana Kenga", Case Analysis (2019). Civil Application No. 44 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/996/eng@2019-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.