Kamau Aidi & 47 Others v Salaries and Remunaration Commission (src)
The bottom line
#Kenya's Court of Appeal struck out the SRC's dormant notice of appeal, confirming that notices of appeal automatically die after 60 days if no appeal is filed.
What this practically means
#Executive summary
#Key legal issues
#Consequence of failure to institute an appeal within 60 days of lodging a notice of appeal
Under Rule 83, the notice of appeal is deemed withdrawn the moment the appointed time lapses; the court may then, suo motu or on application, make formal orders striking out the notice, and the defaulting party is liable in costs.
Relying on Mae Properties Limited v Joseph Kibe, the court held that Rule 83 prescribes the legal consequence of non-institution of an appeal within 60 days in mandatory, peremptory terms. The deeming provision is a practical rule intended to rid the registry of speculative or holding notices of appeal, and the court possesses inherent power to formally order the notice deemed withdrawn as a house-cleaning measure.
Whether the overriding objective can cure flagrant non-compliance with Rules 77 and 82
While courts generally sustain rather than strike out pleadings on purely technical grounds, the overriding objective cannot rescue an appeal where the respondent has violated Rules 77 and 82, offered no explanation for the delay, failed to attach a Certificate of Delay, and showed no interest in prosecuting the appeal.
The court acknowledged the trend under sections 1A and 1B of the Civil Procedure Act, sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 towards sustaining pleadings, describing procedural rules as a handmaiden rather than a mistress. However, the respondent's conduct - 253 days of unexplained delay, breach of service obligations, non-attendance at the hearing, and use of the notice merely to deny the applicants the fruits of their judgment - placed the case outside that indulgent approach.
Abuse of the notice-of-appeal process to delay enforcement of a judgment
Where a notice of appeal is filed in name only, with no steps taken to prosecute the appeal, its filing amounts to an attempt to deny the successful party the fruits of judgment and justifies striking out.
The court found that the respondent neither served the notice of appeal on the applicants as Rule 77(1) requires, nor explained why the letter seeking typed proceedings was not copied to or served on them, nor attended the hearing of the application. It concluded the notice was lodged merely to hold the applicants' judgment hostage rather than to pursue a genuine appeal.
Legal principles established
#- A notice of appeal lapses and is deemed withdrawn under Rule 83 if the appeal is not instituted within the 60 days appointed by the Rules; the deeming takes effect automatically upon expiry of the time, and only a Rule 4 extension of time or lodgment within the period can revive it.
- This Court has jurisdiction only over appeals filed within the requisite time or filed out of time with leave of the Court; timeliness of filing goes to jurisdiction.
Court orders
#- 1.The application dated 1st March 2019 seeking to strike out the Notice of Appeal dated 14th June 2018 is allowed
- 2.Costs of the application awarded to the applicants
- On appeal from
- Employment and Labour Relations Court of Kenya at Nyeri
- Constitutional Petition No. 6 of 2017
- Jurisdiction invoked
- Article 159 of the Constitution; Rules 83 and 84 of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau Aidi & 47 Others v Salaries and Remunaration Commission (src)", Case Analysis (2021). Civil Application No. 25 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/715/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.