Ernest Kahiro Kimani v Malindi Musketeers Limited & 5 others
The bottom line
#Kenya's Court of Appeal struck out an entire appeal because the appellant missed strict filing and service deadlines under the Court of Appeal Rules.
What this practically means
#Executive summary
#Key legal issues
#Consequences of failure to serve a notice of appeal within seven days under Rule 77(1)
The uncontroverted failure to serve the notice of appeal and letter bespeaking proceedings timeously rendered the notice of appeal invalid and the resulting record of appeal liable to be struck out.
The applicant deponed that the notice of appeal was served only with the record of appeal on 28th September 2018, outside the seven-day window in Rule 77(1). The 1st respondent filed no replying affidavit or submissions, so the averment stood uncontroverted and was held well founded. The Court, drawing on its prior authorities, held that a defective notice of appeal cannot be amended and can only be struck out, and that the invalid notice could not anchor the record of appeal.
Effect of default under Rule 82(1) on the timeline for filing the record of appeal
Having failed to lodge and serve the letter bespeaking proceedings within thirty days, the 1st respondent could not invoke the proviso to Rule 82(1) and was bound to file the record of appeal within sixty days of 5th June 2018, i.e. by 2nd August 2018; a record filed on 18th September 2018 was out of time and invalid.
The Court reasoned that Rule 82(1) requires the letter bespeaking proceedings to be lodged and served within thirty days of the decision. Default deprives a party of the benefit of the proviso, so the record of appeal had to be lodged within sixty days of 5th June 2018. Filing on 18th September 2018 fell outside that timeline, making the record invalid and a proper candidate for striking out.
Failure to serve the record of appeal within seven days under Rule 90(1) and (2)
Service of the record of appeal ten days after lodging, outside the seven days stipulated in Rule 90, vitiated the record.
Grounds 3 and 4 of the application were explicit that the record of appeal was lodged on 18th September 2018 and served on 28th September 2018, a period of ten days. This exceeded the seven days stipulated in Rule 90, and the Court accordingly held that the record stood vitiated.
Whether the application was brought within the thirty-day window in the proviso to Rule 84
The application dated 22nd October 2018 was within thirty days of service of the record of appeal on 28th September 2018, so the Court was properly seized of it.
The Court construed Rule 84 as affording succor to a person affected by an appeal who applies to strike out the notice or appeal within thirty days of service. Since the record of appeal was served on 28th September 2018 and the application was dated 22nd October 2018, the application fell within the prescribed timeline and the Court had jurisdiction to entertain it.
Legal principles established
#- Whether an appeal is filed on time is a fundamental issue going to the jurisdiction of the Court; the Court only has jurisdiction to entertain appeals filed within the requisite time or out of time with leave.
- An appeal filed out of time without leave is a proper candidate for striking out.
- A notice of appeal is a primary document incapable of amendment; where found defective it can only be struck out.
- Non-compliance with the service prerequisite in Rule 77(1) renders a notice of appeal invalid, and it cannot form an anchor for a record of appeal.
- Where a party fails to lodge and serve the letter bespeaking proceedings within thirty days under Rule 82(1), it cannot rely on the proviso to Rule 82(1) and must lodge its record of appeal within sixty days of the decision.
Court orders
#- 1.The notice of appeal dated 5th June 2018 is struck out
- 2.The record of appeal in Malindi Court of Appeal Civil Appeal No. 119 of 2018 filed on 18th September 2018 is struck out
- 3.Costs of the application awarded to the applicant
- On appeal from
- Environment and Land Court, High Court at Malindi
- Malindi ELC Case No. 186 of 2011 (OS)
- Jurisdiction invoked
- Rule 84 of the Court of Appeal Rules (application to strike out a notice or appeal), invoked with Rules 42, 47, 76, 77(1), 82 and 90 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ernest Kahiro Kimani v Malindi Musketeers Limited & 5 others", Case Analysis (2021). Civil Application No. 102 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/705/eng@2021-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.