Efureith Irima Mugo v Republic & 5 others
The bottom line
#The Court of Appeal struck out an appeal filed late, ruling that COVID-19 court restrictions did not suspend Kenya's appeal filing deadlines.
What this practically means
#Executive summary
#Key legal issues
#Effect of late service of the notice of appeal under Rule 77(1)
The appellant's admitted late service of the notice of appeal, contrary to Rule 77(1), rendered the notice and the appeal incompetent and amenable to striking out under Rule 84.
Rule 84 enables a person affected by an appeal to apply to strike out the notice or the appeal where an essential step was not taken within the prescribed time. Service of the notice of appeal within the 7 days stipulated by Rule 77(1) is such an essential step. The appellant conceded the notice was served on 3rd February 2020, outside the stipulated period. Together with the failure to lodge the record of appeal in time, this left the appeal incompetent and liable to be struck out.
Whether the COVID-19 pandemic scaling down of court operations excused the late filing of the record of appeal
It did not. The practice directions issued during the pandemic provided for e-filing, e-payment and e-service and did not suspend the timelines in the Rules; the delay was therefore inexcusable.
While the Chief Justice scaled down court operations from 15th March 2020, he issued Practice Directions on Electronic Case Management on 4th April 2020 and the President of the Court issued complementary Practice Notes on 21st April 2020, enabling e-filing and e-service. These instruments did not suspend the Rules' timelines and could not. The appellant could have filed the record once the directions were issued but chose not to, and the record was filed on 2nd June 2020 without leave. The excuse was unbelievable, unsatisfactory and misplaced in a Rule 84 application concerned with the reckoning of time.
Joinder of parties to an incompetent appeal
Proposed interested parties cannot be joined to an appeal that is itself incompetent and non-existent.
The appellant's motion under Rule 5(2)(b) sought to join two parties who became proprietors of the suit property after the judgment below. Since the notice and record of appeal were struck out as incompetent, there was no appeal into which they could be enjoined. Further, the decree had already been executed, so stay, injunction and inhibition prayers were overtaken by events and ungrantable even had an appeal existed.
Legal principles established
#- A notice of appeal and an appeal must be struck out under Rule 84 where an essential step was not taken or was not taken within the prescribed time, including failure to serve the notice of appeal within 7 days and failure to lodge the record of appeal within 60 days.
- The Chief Justice's COVID-19 practice directions on electronic case management and the President of the Court of Appeal's practice notes did not suspend the timelines contained in the Rules of Court.
Court orders
#- 1.The applicant's motion dated 12th June 2020 is allowed
- 2.The notice of appeal dated 19th December 2019 is struck out
- 3.The record of appeal is struck out
- 4.Costs of the application awarded to the applicant
- On appeal from
- Environment and Land Court at Embu
- ELC JR No. 32 of 2015
- Jurisdiction invoked
- Rule 84 of the Court of Appeal Rules (application to strike out a notice of appeal and appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Titus Mutune v Republic[2025] KECA 496 (KLR)21 Mar 2025
Cite this brief
#Cite this brief
Caselaw, "Efureith Irima Mugo v Republic & 5 others", Case Analysis (2021). Civil Appeal (Application) No. 67 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/674/eng@2021-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.