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Court of AppealDismissedNot stated in the judgment (motion dated 4th February, 2021; appeal referenced as E020 of 2021 NSSF vs Peterkeen M. Kimwelu & 47 Others)· [2021] KECA 167 (KLR)

Peterkeen Mwiu Kimweli & 47 Others v National Social Security Fund Board of Trustees

Court of Appeal of Kenya
19 November 2021
2,524 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to strike out NSSF's appeal because a valid certificate of delay legally extends the 60-day filing deadline.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi, composed of Nambuye, Karanja and Kiage, JJ.A, dismissed a notice of motion dated 4th February, 2021 in which the applicants sought to strike out the respondent's notice of appeal dated 26th August, 2020. The applicants, who had obtained a judgment in their favour from M. Mbaru, J. on 24th August, 2020 and against whom a stay of execution had been granted, argued that the respondent failed to comply with Rule 82(1) of the Court of Appeal Rules by not lodging the record of appeal within sixty days, failed to serve the record within the timelines in Rule 90(1), and unreasonably withheld them from the fruits of their judgment. The respondent showed that it lodged and served a letter bespeaking proceedings within thirty days, was supplied with certified proceedings on 5th February, 2021, filed its appeal on 9th March, 2021 and served it on the applicants in March 2021, relying on the proviso to Rule 82(1) and the certificate of delay. The court applied its precedents in Mae Properties Ltd vs Joseph Kibe and John Mutai Mwangi & 26 Others vs Mwenja Ngure & 4 Others, holding that a notice of appeal survives where time is excluded under the proviso. It rejected the applicants' request in submissions to vitiate the certificate of delay and record of appeal, since relief must be pleaded, and discounted Rule 84 because the applicants did not disclose the date of service of the notice of appeal as required for the thirty-day limitation in its proviso. The application was dismissed, with costs of the application to abide the outcome of the pending appeal.

Key legal issues

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01

Consequence of non-compliance with Rule 82(1) of the Court of Appeal Rules

Holding

A notice of appeal dies after sixty days unless the appeal is lodged within that time, time is excluded under the proviso, or time is extended under Rule 4; Rule 83 then permits the court, on motion or suo motu, to deem the notice withdrawn

Reasoning

The court adopted its earlier pronouncements in Mae Properties Ltd vs Joseph Kibe and John Mutai Mwangi vs Mwenja Ngure. The sixty-day timeline in Rule 82(1) is strict but the proviso excludes time certified as required for preparation of proceedings where the appellant bespokoke and served the letter within thirty days. Rule 83 is an inbuilt case-management device to clean the record of notices of appeal not followed up, especially where a party enjoys interim protective orders such as stay.

p. 3
02

Whether the respondent's appeal was lodged within time

Holding

Yes - the respondent bespokoke and served the letter for proceedings timeously, was supplied with certified proceedings on 5th February 2021, filed the appeal on 9th March 2021 and served it on 25th March 2021, which was within the timelines in the proviso to Rule 82(1) and Rule 90(1) taking into account the certificate of delay

Reasoning

The court found it common ground that the appeal was not lodged within sixty days, but the respondent unrebuttedly relied on the proviso to Rule 82(1). Since the certificate of delay was not vitiated - the applicants having raised that only in submissions - the time taken to prepare the certified proceedings was excluded and the appeal was lodged within the extended period.

p. 4
03

Availability of Rule 84 as an access provision for the applicants

Holding

Rule 84 was discounted because the proviso requires the strike-out application to be brought within thirty days of service of the process sought to be vitiated, and the applicants did not disclose when they were served with the notice of appeal

Reasoning

The court gave the rule its plain reading: the thirty-day window runs from service of the notice of appeal or record of appeal. Without particulars of the date of service, the court could not compute the thirty-day period, so the rule could not provide succor to the applicants.

p. 5

Legal principles established

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  • A notice of appeal lapses after sixty days unless the appeal is lodged within that period, within time as extended under the proviso to Rule 82(1), or time is extended by a single Judge under Rule 4
  • Where an appellant bespeaks and serves proceedings within thirty days, time taken to prepare the certified copy, evidenced by a certificate of delay, is excluded in computing the sixty-day period under Rule 82(1)
  • A party is bound by its pleadings and a court cannot grant relief not pleaded or prayed for
  • An application under Rule 84 to strike out a notice of appeal or an appeal must be brought within thirty days of service of the notice of appeal or record of appeal, and the applicant must disclose the date of service

Court orders

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  1. 1.The applicants' notice of motion dated 4th February, 2021 is dismissed
  2. 2.Costs of the application to abide the outcome of the appeal already filed
On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9) and Rules 47, 82, 83 and 84 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Peterkeen Mwiu Kimweli & 47 Others v National Social Security Fund Board of Trustees", Case Analysis (2021). Not stated in the judgment (motion dated 4th February, 2021; appeal referenced as E020 of 2021 NSSF vs Peterkeen M. Kimwelu & 47 Others). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/167/eng@2021-11-19

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