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Court of AppealDismissedNot stated in judgment· [2021] KECA 150 (KLR)

Shadrack Oletetia Tome & 1 other v Attorney General & 2 others

Court of Appeal of Kenya
19 November 2021
RNR. N. NambuyeJMJ. MohammedHOH. A. Omondi
1,894 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out a four-year-delayed attempt to strike out a Notice of Appeal, confirming the strict 30-day filing rule and protecting diligent litigants.

What this practically means

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Executive summary

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This was an interlocutory application in the Court of Appeal, Nairobi, by notice of motion dated 18th June 2019 under Rules 84 and 85(1) of the Court of Appeal Rules, seeking to strike out a Notice of Appeal dated 12th June 2015 and filed on 16th June 2015 on the ground that the 2nd respondent had failed to lodge a Record of Appeal within the 60 days prescribed by Rule 82. The applicant also argued that Fredrick Olonana Tome, the 2nd defendant in the suit below, was dead when the Notice of Appeal was filed and no legal representative had been appointed, so the appeal had abated under Rule 85(1). The 2nd respondent countered that she had instructed advocates, filed and served the Notice of Appeal, and repeatedly requested typed proceedings from the Environment and Land Court by letters spanning 2015 to 2021, without success. The court, in a single judgment of the bench of Nambuye, Mohammed and Omondi JJA, held that striking out is a draconian and discretionary remedy; that the proviso to Rule 84 mandatorily requires such applications to be filed within 30 days of service of the Notice of Appeal, and this application, filed four years later, was fatally defective; and that, on the merits, the 2nd respondent had demonstrated diligence, the delay being attributable to the court below's failure to supply proceedings. Following the Supreme Court's decision in Hassan Nyange Charo v Khatib Mwashetani, the court dismissed the application with costs to the 2nd respondent, and directed that the Deputy Registrar of the Environment and Land Court be notified of the delay in availing proceedings, which was impeding access to justice. The abatement argument was not determined.

Key legal issues

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01

Competency of the striking-out application under Rule 84

Holding

The application, filed in 2019 against a Notice of Appeal served on 23rd July 2015, was brought far outside the 30-day window in the proviso to Rule 84 and was therefore technically defective.

Reasoning

The court reiterated its settled position that the proviso to Rule 84 is mandatory. Citing Total Kenya Limited v Rueben Mulwa Kioko, Esther Onyango Ochieng v Transmara Sugar Company, and William Mwangi Ngaruki v Barclays Bank of Kenya Ltd, it held that an application to strike out brought after 30 days from service of the notice of appeal is incompetent unless leave is sought and obtained to file it out of time. No such leave was sought here.

p. 4
02

Whether the 2nd respondent abandoned the intended appeal by failing to lodge the record within 60 days under Rule 82

Holding

No. The delay in lodging the record of appeal was occasioned by the Environment and Land Court's failure to supply typed proceedings despite numerous reminders spanning 2015 to 2021.

Reasoning

The court examined the annexed correspondence: after the initial request of 18th June 2015, the 2nd respondent sent reminder letters on 23rd March 2017, 3rd May 2017, 10th December 2018, 20th August 2018, 15th October 2018, 20th December 2019, 31st March 2021 and 29th June 2021. These unchallenged facts demonstrated continued diligence, aligning the case with the Supreme Court's approach in Hassan Nyange Charo v Khatib Mwashetani, where an applicant impeded by the slow administrative machinery of the court should not be turned away.

p. 4
03

The applicant's argument that the appeal abated because Fredrick Olonana Tome, the 2nd defendant in the High Court suit, was dead when the Notice of Appeal was filed and no legal representative was appointed

Holding

The court did not determine this issue, disposing of the application instead on the Rule 84 competency point and on the merits of diligence.

Reasoning

Although the applicant invoked Rule 85(1) and the abatement argument based on the death of the 2nd defendant, the judgment records this submission without making any finding on it. The disposition rests solely on the mandatory 30-day proviso to Rule 84 and on the conclusion that the 2nd respondent was diligent in pursuing proceedings. The abatement question is left undecided.

p. 4

Legal principles established

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  • An application to strike out a Notice of Appeal under Rule 84 must be brought within 30 days of service of the notice or record of appeal; failure to comply renders the application fatally defective and liable to be struck out, unless leave to file out of time is sought and obtained.
  • Striking out a pleading is a draconian act resorted to only in plain and outright instances; the power to strike out an appeal is discretionary and exercised on the peculiar circumstances of each case.
  • A diligent litigant whose record of appeal is delayed because the court below has not supplied typed proceedings cannot be driven from the seat of justice by an application to strike out the Notice of Appeal.

Court orders

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  1. 1.The application dated 18th June 2019 is dismissed with costs to the 2nd respondent
  2. 2.The Deputy Registrar of the Environment and Land Court to be notified of the delay in availing proceedings, which is impeding access to justice
On appeal from
Environment and Land Court
Not stated in judgment
Jurisdiction invoked
Rules 84 and 85(1) of the Court of Appeal Rules (application to strike out a Notice of Appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (15)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Shadrack Oletetia Tome & 1 other v Attorney General & 2 others", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/150/eng@2021-11-19

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