Mercy Muthoni & another v Mercy Muthoni & another [2020] KECA 888 (KLR)
The bottom line
#The Court of Appeal struck out an appeal because the notice of appeal was filed late without permission, ending the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the notice of appeal lodged on 12th July 2017 was valid
It was not: it was lodged outside the fourteen days prescribed by rule 75(2) without leave, and is therefore a nullity
Rule 75(1) and (2) of the Court of Appeal Rules require a notice of appeal to be lodged within fourteen days of the decision appealed against. The respondents admitted no notice was lodged within that period. No application for extension of time was ever made. Citing the Supreme Court's decision in Teachers Service Commission v Simon P. Kamau, the Court held that a notice of appeal filed out of time without leave cannot be rescued by Article 159 of the Constitution and renders the appeal a nullity.
Whether the record of appeal should be struck out
Yes; the appeal having been founded on an invalid notice of appeal, the record of appeal is struck out
Counsel for the applicants had objected to the validity of the appeal throughout, yet the respondents never moved for extension of time. Following the Supreme Court's guidance that a document filed out of time without leave should be struck out, the Court allowed the motion and struck out the record of appeal, awarding costs to the applicants.
Legal principles established
#- A notice of appeal is a jurisdictional requisite; an appeal filed out of time without leave of the court is a nullity and cannot be sustained
Court orders
#- 1.The motion is allowed and the record of appeal being Civil Appeal No. 290 of 2017 is struck out
- 2.The applicants will have costs of the Motion
- On appeal from
- High Court of Kenya at Nairobi
- Succession Cause No. 518 of 2012
- Jurisdiction invoked
- Appeal from the High Court under the Court of Appeal Rules; motion under the rules of the Court to strike out a record of appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mercy Muthoni & another v Mercy Muthoni & another [2020] KECA 888 (KLR)", Case Analysis (2020). Civil Appeal No. 290 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/888/eng@2020-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.