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Court of AppealDismissedCivil Application 15 of 2020· [2022] KECA 365 (KLR)

Cyber Access Limited v National Land Commission

Court of Appeal
18 February 2022
730 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled the National Land Commission's appeal notice was filed on time, so Cyber Access's attempt to strike it out failed.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (SG Kairu, A Mbogholi-Msagha and P Nyamweya, JJA) on an application by Cyber Access Limited, dated 19 February 2020, seeking to strike out a notice of appeal lodged by the National Land Commission against the judgment of the High Court (E.K. Ogola, J.) of 23rd January 2020 in Constitutional Petition No. 43 of 2018. The respondent did not appear at the virtual hearing, filed no replying affidavit and filed no submissions. The applicant argued that the notice of appeal was served on 6th February 2020, outside the 7-day period, rendering it incompetent. The Court held that although the notice bore a faint stamp of 24th January 2020 of uncertain origin, the date of 30th January 2020 appearing against the signature of the Deputy Registrar of the High Court at Mombasa was the date of lodgment, which was within the 14 days allowed under Rule 75. Service on 6th February 2020 was therefore within the 7 days stipulated by Rule 77(1). The application was dismissed with no orders as to costs, the respondent having taken no steps to oppose it. The Court directed that the ruling apply mutatis mutandis to the companion application, Mombasa Civil Application No. 16 of 2020 (Habo Agencies Limited v National Land Commission), on identical circumstances. The decision below was not disturbed; this ruling concerns only the competency of the notice of appeal.

Key legal issues

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01

Date of lodging the notice of appeal under Rule 75

Holding

The notice of appeal was lodged on 30th January 2020, the date appearing against the Deputy Registrar's signature, which was within the 14 days prescribed by Rule 75.

Reasoning

The exhibit showed a faint stamp of 24th January 2020 of uncertain origin, but at the foot of the notice the Deputy Registrar of the High Court at Mombasa signed below a date of 30th January 2020 with printed words indicating lodging in the Court of Appeal at Mombasa. The Court adopted that date as the lodgment date, making the notice timely under Rule 75.

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02

Timeliness of service under Rule 77(1)

Holding

Service of the notice of appeal on 6th February 2020 was within 7 days of lodgment on 30th January 2020, complying with Rule 77(1).

Reasoning

Rule 77(1) requires an intended appellant to serve copies of the notice of appeal on all persons directly affected before or within seven days after lodging it. Taking 30th January 2020 as the lodgment date, service effected on 6th February 2020 fell within the stipulated period, defeating the applicant's contention that service was late.

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Legal principles established

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  • Where a notice of appeal bears a faint or ambiguous stamp date, the date of lodging is taken to be the date appearing against the signature of the Deputy Registrar of the superior court.
  • Service of a notice of appeal within 7 days after lodging, as required by Rule 77(1) of the Court of Appeal Rules, renders the notice competent against a striking-out application.

Court orders

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  1. 1.The application dated 19 February 2020 is dismissed with no orders as to costs
  2. 2.The ruling applies mutatis mutandis to Mombasa Civil Application No. 16 of 2020 between Habo Agencies Limited and the National Land Commission

Authorities

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Legislation

  • Court of Appeal RulesRule 75
  • Court of Appeal RulesRule 77(1)
  • Court of Appeal RulesRule 76
On appeal from
High Court of Kenya at Mombasa
High Court Constitutional Petition No. 43 of 2018
Jurisdiction invoked
Court of Appeal Rules (Rule 75 and Rule 77(1)) - 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, "Cyber Access Limited v National Land Commission", Case Analysis (2022). Civil Application 15 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/365/eng@2022-02-18

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