Lina Cherop Wangamati v Philip Kisang & another [2020] KECA 262 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Mandatory nature of service of notice of appeal within seven days under Rule 77(1)
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.
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.
Excusability of delay in serving the notice of appeal
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.
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.
Legal principles established
#- 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
#- 1.The notice of appeal dated 25th May, 2018 is struck out
- 2.The respondents shall bear the costs of the application
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.