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Court of AppealAllowedCivil Application No. 146 of 2019· [2021] KECA 1084 (KLR)

Ewoton Leonard Ekutian & another v Michael Kore Rotich & 4 others [2021] KECA 1084 (KLR)

Court of Appeal
29 January 2021
William OukoW. OukoWKW. KaranjaJMJ. Mohammed
938 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a notice of appeal filed 261 days late without leave, confirming that appeal time limits are strictly enforced.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal (Ouko, P, Karanja and J. Mohammed, JJ.A) on a Notice of Motion dated 11th November 2019 by which the applicants, Ewoton Leonard Ekutian and Pius Atok Ewoton, sought to strike out a notice of appeal lodged by the five respondents against the judgment of the Environment and Land Court at Kitale (Mwangi Njoroge, J) delivered on 29th January 2019 in ELC Case No. 87 of 2009. The applicants argued that the notice, filed on 24th October 2019 and served on 25th October 2019, was lodged 261 days outside the fourteen-day period prescribed by Rule 75(2) of the Court of Appeal Rules and that no leave to file out of time had been obtained. The respondents filed no replying affidavit or submissions despite service. The court framed a single question: whether the notice should be struck out for non-compliance with Rule 75(2). Applying Rule 75(2) and the proviso to Rule 84, the court held that a notice filed outside the prescribed period without leave is incompetent. It further held, following Gichuki Kingara & Co Advocates v AL Jalal Enterprises Ltd, that the thirty-day limit in the proviso to Rule 84 is mandatory; the applicants' application, lodged within that period, was competent. The motion was allowed, the notice of appeal was struck out, and costs were awarded to the applicants. This binds subordinate courts and tribunals on the mandatory nature of these time limits.

Key legal issues

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01

Competency of a notice of appeal filed out of time without leave

Holding

The notice of appeal filed 261 days after the judgment, without leave to file out of time, was incompetent and was struck out.

Reasoning

Rule 75(2) of the Court of Appeal Rules requires a notice of appeal to be lodged within fourteen days of the decision appealed against, subject only to rules 84 and 97. Rule 97 was irrelevant. The respondents filed their notice on 24th October 2019 against a judgment delivered on 29th January 2019, without obtaining leave, so the notice was incompetent.

p. 2
02

Timeliness of the strike-out application under the proviso to Rule 84

Holding

The applicants' application, filed 13th November 2019 following service of the notice of appeal on 25th October 2019, was within the thirty-day limit and was therefore competent.

Reasoning

The proviso to Rule 84 bars a strike-out application brought after thirty days from service of the notice of appeal or record of appeal. The court found the notice was served on 25th October 2019 and the application was lodged on 13th November 2019, inside the window, so the application was competent and could be determined on its merits.

p. 2

Legal principles established

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  • A notice of appeal must be lodged within fourteen days of the decision appealed against; one filed outside that period without leave is incompetent and liable to be struck out.
  • The proviso to Rule 84 is mandatory: an application to strike out a notice of appeal brought more than thirty days after service of the notice or record of appeal is a non-starter.

Court orders

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  1. 1.The Notice of Motion dated 11th November, 2019 is allowed
  2. 2.The notice of appeal dated 22nd October, 2019 is struck out
  3. 3.Costs of the application to the applicants
On appeal from
Environment & Land Court at Kitale
ELC Case No. 87 of 2009
Jurisdiction invoked
Court of Appeal Rules, Rule 84 (application to strike out a notice of appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ewoton Leonard Ekutian & another v Michael Kore Rotich & 4 others [2021] KECA 1084 (KLR)", Case Analysis (2021). Civil Application No. 146 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1084/eng@2021-01-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.