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Court of AppealAllowedCivil Application No. 87 of 2018· [2020] KECA 262 (KLR)

Lina Cherop Wangamati v Philip Kisang & another [2020] KECA 262 (KLR)

Court of Appeal of Kenya
23 October 2020
823 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a notice of appeal because the appellants served it 77 days late, confirming the seven-day service rule is mandatory.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal (Murgor, Sichale and Kantai, JJ.A) on a Notice of Motion dated 14th September 2018 brought by Lina Cherop Wangamati under Rules 83 and 84 of the Court of Appeal Rules, 2010, seeking to strike out the respondents' notice of appeal filed on 25th May 2018 against the judgment of Chemitei, J. in Succession Cause No. 61 of 2014 (High Court, Kitale) delivered on 18th May 2018. The applicant contended that although the notice of appeal was filed timeously, it was served on 17th August 2018, 77 days outside the seven-day period prescribed by Rule 77(1); that no record of appeal was ever served; and that the intended appeal should be deemed withdrawn under Rule 90(1). The respondents filed no affidavit in response, and the motion was determined on written submissions with no appearance of counsel. The Court held that Rule 77(1) is couched in mandatory terms and that service of the notice of appeal must always be effected within seven days of filing, following Stephen Kinoro Kamau and Daniel Nkirimpa Monirei. While acknowledging that delay in service may be excused for good reason, the Court found no application to enlarge time and no explanation for the delay, amounting to outright non-compliance with an essential step. The application succeeded; the notice of appeal dated 25th May 2018 was struck out, with costs awarded to the applicant. This ruling binds the High Court and subordinate tribunals on the mandatory character of Rule 77(1) service.

Key legal issues

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01

Mandatory nature of service of notice of appeal within seven days under Rule 77(1)

Holding

Service of the notice of appeal on the respondent within seven days of filing is an essential step, couched in mandatory terms; failure to comply renders the notice liable to be struck out under Rule 84.

Reasoning

The Court found the notice was filed timeously on 25th May 2018 but served on the applicant on 17th August 2018, 77 days outside the stipulated period. The purpose of service is to alert the respondent that the matter has escalated to the appellate level so they can prepare. Non-compliance is excusable only for good reason shown, and no application to enlarge time had been made. Outright non-compliance of an essential step followed, so striking out was inevitable.

p. 2
02

Excusability of delay in serving the notice of appeal

Holding

Delay in service may be excused for good reason, but only where the party satisfies the Court that the delay was excusable, or where time is enlarged; neither existed here.

Reasoning

The Court acknowledged that failure to serve the notice of appeal on time may be excused where the respondent satisfies the Court that the delay was excusable in the circumstances. However, on the facts there was no application on record seeking enlargement of time to serve outside the seven days stipulated, and no explanation was offered; the respondents also filed no affidavit in response. The non-compliance was therefore inexcusable.

p. 2

Legal principles established

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  • Rule 77(1) of the Court of Appeal Rules is mandatory: a notice of appeal must be served on all persons directly affected before or within seven days of lodging it, and non-compliance without excusable reason or enlargement of time justifies striking out the notice.

Court orders

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  1. 1.The notice of appeal dated 25th May, 2018 is struck out
  2. 2.The respondents shall bear the costs of the application

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 77(1)
  • Court of Appeal Rules, 2010Rule 83
  • Court of Appeal Rules, 2010Rule 84
  • Court of Appeal Rules, 2010Rule 90(1)

Cases cited (4)

  • Stephen Kinoro Kamau vs. Wanjiku Kinuthia & another
    [2005] eKLR
  • Daniel Nkirimpa Monirei vs. Sayialel ole Koilel & 4 others
    [2016] eKLR
  • Njeri Njoroge vs. Joseph Maina Gichuhi & another
    [2018] eKLR
  • Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 6 others
    [2013] eKLR
On appeal from
High Court of Kenya at Kitale
Succession Cause No. 61 of 2014
Jurisdiction invoked
Rules 83 and 84 of the Court of Appeal Rules, 2010 (inherent appellate supervisory jurisdiction over notices 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, "Lina Cherop Wangamati v Philip Kisang & another [2020] KECA 262 (KLR)", Case Analysis (2020). Civil Application No. 87 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/262/eng@2020-10-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.