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Court of AppealAllowedCivil Application No. 30 of 2019· [2021] KECA 666 (KLR)

Fabio Mareli & 2 others v Danielle Scolaro

Court of Appeal of Kenya
23 April 2021
RNR.N. NambuyeASAsike-MakhandiaSKS. ole Kantai
867 words in judgment
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The bottom line

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The Court of Appeal killed an appeal that missed key filing deadlines, showing Kenya's appeal timelines are strictly enforced.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Nambuye, Asike-Makhandia and Kantai, JJ.A.) on four identical applications by Fabio Mareli, Songhai Investments Limited and Mohamed Isaac Bachani against Danielle Scolaro, consolidated into Civil Application No. 30 of 2019. The motions, brought under Rules 42, 77, 83 and 84 of the Court of Appeal Rules, sought an order deeming the respondent's Notice of Appeal dated 7th March 2019 (lodged 8th March 2019) as withdrawn or struck out. The applicants, who were defendants in the Environment and Land Court at Malindi (O. Angote, J.), whose judgment of 21st February 2019 in ELC No. 72 of 2009 the respondent intended to appeal, complained that the Notice of Appeal was served on them out of time and that no Memorandum or Record of Appeal had been lodged within the 60-day period, there being no letter requesting proceedings served on them to extend that period. The respondent filed no replying affidavit. The Court restated the obligations under Rules 75 and 77 - lodgement within 14 days, service within 7 days, and filing of the Record of Appeal within 60 days - and, noting the unchallenged failures, deemed the Notice of Appeal withdrawn and, in the alternative, struck it out, with costs to the applicants. The effect is that the respondent's intended appeal cannot proceed. No outside authorities were cited; the ruling turns purely on the Court of Appeal Rules.

Key legal issues

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01

Whether an unserved Notice of Appeal and a missing Record of Appeal warrant striking out the Notice

Holding

The Court deemed the Notice of Appeal dated 7th March 2019 withdrawn, and in the alternative struck it out, because it was served outside the time required by the rules and no Record of Appeal had been filed within the prescribed 60 days, facts which were unchallenged.

Reasoning

The Court restated the procedural steps under Rules 75 and 77: lodgement of the Notice within 14 days, service within 7 days of lodgement, and filing of the Record of Appeal within 60 days. The applicants deponed, without challenge, that the Notice was served out of time and that no Record of Appeal had been lodged. In those uncontroverted circumstances the Court held it proper to deem the Notice withdrawn or strike it out, and awarded the applicants costs.

p. 2

Legal principles established

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  • An appellant under Rule 75 must lodge a Notice of Appeal within 14 days of the decision and serve it under Rule 77 within 7 days of lodgement, and must file a Record of Appeal within 60 days; failure to serve the Notice in time and to file the Record within 60 days justifies deeming the Notice of Appeal withdrawn or striking it out.

Court orders

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  1. 1.The Notice of Appeal dated 7th March 2019 is deemed withdrawn
  2. 2.In the alternative, the Notice of Appeal is struck out
  3. 3.The applicants will have costs of the Motions
On appeal from
Environment and Land Court of Kenya at Malindi
ELC No. 72 of 2009
Jurisdiction invoked
Rules 42, 77, 83 and 84 of the Court of Appeal Rules (application to deem a Notice of Appeal withdrawn or strike it out)

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, "Fabio Mareli & 2 others v Danielle Scolaro", Case Analysis (2021). Civil Application No. 30 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/666/eng@2021-04-23

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