Julius Kabaruku Ndundi Jonathan Kenga Thethe Changawa Kabaruku Ndundi v The Estate of Maniklal Palathbhai Dalal
The bottom line
#Kenya's Court of Appeal struck out an appeal because the notice of appeal was served 26 days late, confirming appellate timelines are mandatory.
What this practically means
#Executive summary
#Key legal issues
#Whether late service of a notice of appeal beyond the seven days prescribed by Rule 77 justifies striking out the notice and any record of appeal premised on it
Yes. Service 26 days after lodging, far outside the seven statutory days, without explanation, renders the intended appeal incompetent and the notice of appeal is struck out.
The court distinguished the two obligations: the respondents had complied with Rule 75 by lodging the notice within fourteen days of the decision, but failed to comply with Rule 77, which requires service on all persons directly affected before or within seven days after lodging. The applicants' motion was filed within the thirty-day window in Rule 84, so it was properly before the court. Relying on MAE Properties Ltd v Joseph Kibe, the court emphasised that the timelines in the Rules are indispensable and command obedience; no explanation for the delay was proffered.
Legal principles established
#- Service of a notice of appeal on all persons directly affected must be effected before or within seven days after lodging the notice, and failure to do so renders the appeal incompetent.
- The timelines in the Court of Appeal Rules, including the timeline for service of a notice of appeal, are mandatory and command strict obedience.
- An application to strike out a notice of appeal for late service must be brought within thirty days from the date of service of the notice of appeal.
Court orders
#- 1.The notice of appeal dated 28th June 2019 and any record of appeal premised on it is struck out with costs
- On appeal from
- Environment and Land Court at Malindi
- Malindi ELC No. 174 of 2012 (OS), heard with Malindi ELC No. 204 of 2013 (OS)
- Jurisdiction invoked
- Rules 75, 77 and 84 of the Court of Appeal Rules (application for striking out a notice of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Kabaruku Ndundi Jonathan Kenga Thethe Changawa Kabaruku Ndundi v The Estate of Maniklal Palathbhai Dalal", Case Analysis (2021). Civil Application No. 65 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/670/eng@2021-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.