Sheikh Ali Taib & another v Selina Wekesa & another [2021] KECA 713 (KLR)
The bottom line
#The Court of Appeal struck out an appeal filed just three days late because proof of serving a key procedural letter was missing.
What this practically means
#Executive summary
#Key legal issues
#Compliance with Rule 82(1) and (2) of the Court of Appeal Rules
The respondent failed to demonstrate that the letter bespeaking proceedings was served on both the Deputy Registrar and the opposite party within thirty days of the decision, so she could not rely on the proviso to Rule 82(1), and the record of appeal filed out of time was fatal to the appeal.
Rule 82(1) requires lodging the record of appeal within sixty days of the notice of appeal, subject to the proviso excluding time certified by the registrar. The proviso is only available where the application for proceedings was in writing and served on the respondent within thirty days of the decision. The respondent annexed the letter dated 19th December 2018 and it was copied to the opposite party, but service upon them was not proved. A certificate of delay cannot aid an appellant who has not satisfied the proviso's service requirement.
Timeliness of the striking-out application under Rule 84
The application filed on 21st May 2019 was within the thirty-day period, the applicants having been served with the record of appeal on 25th April 2019, so reliance on Rule 84 was well founded and sustainable.
Rule 84 bars a striking-out application brought more than thirty days after service of the notice of appeal or record of appeal. The applicants deposed that they were served with the record of appeal dated 29th March 2019 on 25th April 2019. Computing thirty days from that date, the application filed on 21st May 2019 was within time, establishing the applicants' access to the relief sought.
Legal principles established
#- The sixty-day timeline in Rule 82 for instituting an appeal is strict, and an appellant cannot rely on the proviso excluding time unless the application for proceedings was in writing and served on the respondent within thirty days of the decision.
- An unexplained failure to comply with Rule 82(1) and (2) is fatal to the appellate process and renders the appeal liable to be struck out under Rule 84.
- A short delay of a few days may be excusable on an application for extension of time but cannot save a record of appeal in a striking-out application under Rule 84.
Court orders
#- 1.The appeal be and is hereby struck out with costs to the applicant
- On appeal from
- High Court of Kenya
- Mombasa ELC No. 454 of 2002
- Jurisdiction invoked
- Rules 82 and 84 of the Court of Appeal Rules (application to strike out an appeal for non-compliance with Rule 82)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sheikh Ali Taib & another v Selina Wekesa & another [2021] KECA 713 (KLR)", Case Analysis (2021). Civil Application No. 42 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/713/eng@2021-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.