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Court of AppealPartially Allowed· [2022] KECA 66 (KLR)

Nzai & 57 others v Invesco Assurance Co. Ltd (Miscellaneous Civil Application 51 of 2019) [2022] KECA 66 (KLR)

Court of Appeal of Kenya
21 January 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
1,745 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because the Notice of Appeal was served nearly four months late, confirming the seven-day service rule is mandatory.

What this practically means

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Executive summary

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This is a unanimous decision of the Court of Appeal at Mombasa (Kairu, Nyamweya and Lesiit, JJ.A) delivered on 21st January 2022 on an application dated 3rd July 2019 under Rules 77 and 84 of the Court of Appeal Rules. The applicants sought to strike out a Notice of Appeal dated 27th February 2019, lodged against a ruling of the Malindi High Court in Insolvency Cause No. 1 of 2018 delivered on 21st February 2019, on the ground that the notice was served on their advocate on 21st June 2019 - almost four months after lodging - contrary to Rule 77(1), which requires service within seven days. The respondent filed only written submissions, arguing that the application was defective as a stand-alone application not filed in an appeal file, and invoked Article 159(2)(d) of the Constitution and related substantiative-justice provisions. The court held that Rule 77(1) is mandatory, that the delay of almost four months was inordinate and unreasonable, and that the respondent, having filed no affidavit, offered no plausible explanation; the claim of intending to revive settlement negotiations was unsupported. It further held that a Rule 84 striking-out application need not be filed in the appeal file, and that the respondent could not rely on the court's power to extend time without filing such an application. The court adopted Patrick Kiruja Kithinji v Victor Mugira Marete on the jurisdictional significance of timeliness. The application was allowed: both the notice and record of appeal were struck out with costs to the applicant. The decision binds lower courts on the mandatory character of Rule 77(1) and the consequences of unexplained delay in service.

Key legal issues

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01

Mandatory nature of Rule 77(1) on service of Notice of Appeal

Holding

Rule 77(1) is couched in mandatory terms; service of the Notice of Appeal almost four months after lodging was inordinate and unreasonable, and with no explanation the notice must be struck out.

Reasoning

The court found the notice was lodged on 27th February 2019 but served on 21st June 2019, nearly four months later. Rule 77(1) requires service before or within seven days of lodging. The law sets no minimum or maximum period of delay, but the burden lies on the respondent to offer a reasonable and plausible explanation. The respondent filed no affidavit; the claim of intending to revive negotiations was unsupported. Unexplained noncompliance with a mandatory rule renders the appeal invalid.

p. 4
02

Whether the application was defective for not being filed in the appeal file

Holding

The application under Rule 84 is properly brought even before the appeal is instituted; it need not be filed in the appeal file, and the provisions cited by the respondent do not apply.

Reasoning

Rule 84 permits a person affected by an appeal to apply at any time, before or after institution of the appeal, to strike out the notice or appeal where no appeal lies or an essential step was not taken within the prescribed time. Although the rule specifies that the application be made by motion, it does not require filing in the appeal file. The Civil Procedure Act provisions and the case cited by the respondent do not relate to striking out under Rules 77(1) and 84.

03

Whether Article 159(2)(d) and extension-of-time powers could rescue the respondent

Holding

No. The respondent never applied for extension of time and, having failed to comply with mandatory procedural law without excuse, cannot invoke the overriding objective or Article 159(2)(d).

Reasoning

The respondent relied on Article 159(2)(d) of the Constitution, the Supreme Court Act, the Appellate Jurisdiction Act, the Civil Procedure Act and the Elections Act to argue that substantive justice trumps procedure. The court held these cannot aid a party who has blatantly disregarded mandatory procedural rules and offered no excuse. A party wishing to rely on the court's power to extend time must actually file such an application, which the respondent did not do.

p. 3

Legal principles established

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  • Service of a Notice of Appeal on all persons directly affected must be effected before or within seven days after lodging the notice, and unexplained inordinate delay in service is a fundamental noncompliance that renders the appeal invalid.
  • Timely filing of an appeal goes to the jurisdiction of the Court, which can entertain only appeals filed within time or out of time with leave.
  • A Rule 84 striking-out application need not be filed in the appeal file; it may be brought before or after institution of the appeal.

Court orders

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  1. 1.The Notice of Appeal dated 27th February 2019 is struck out
  2. 2.The record of appeal is struck out
  3. 3.Costs of the application awarded to the applicant

Authorities

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Legislation

  • Court of Appeal RulesRule 77(1)
  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 4
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Supreme Court ActSection 14(6)
  • Appellate Jurisdiction ActSections 3A and 3B
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure ActSection 19
  • Elections ActSection 80(1)(d)
  • Civil Procedure RulesOrder 3 Rule 1(i); Order 4 Rule 1(i) and (2)

Cases cited (5)

  • Mistry Premji Ganji Investments Limited v Kenya National Highways Authority
    (2019) eKLR
  • Stanley Kahura Mwangi & 2 others v Kanyamwi Company Limited, Nakuru Civil App No. 287 of 2014
  • George Kagima Kariuki v George Gichimu and 2 others
    (2014) eKLR
  • Patrick Kiruja Kithinji vs. Victor Mugira Marete
    [2015] eKLR
  • Samuel Chege Thiari & Another v Eddah Wanjiru Wangari & 3 others
    (2018) eKLR
On appeal from
High Court of Kenya, Malindi
Malindi High Court Insolvency Cause No. 1 of 2018
Jurisdiction invoked
Rules 77 and 84 of the Court of Appeal Rules (interlocutory application in an intended appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nzai & 57 others v Invesco Assurance Co. Ltd (Miscellaneous Civil Application 51 of 2019) [2022] KECA 66 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/66/eng@2022-01-21

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