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Court of AppealAllowedCivil Application 111 of 2020· [2022] KECA 503 (KLR)

Muse v Wepukhulu & 10 others

Court of Appeal
28 April 2022
PKP. O. KiageMNMumbi NgugiFTF. Tuiyott
513 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal struck out a notice of appeal because the appellants served it late, missing the 14-day deadline the court had granted.

What this practically means

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Executive summary

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By a motion dated 16th September 2020 under Rule 84 of the Court of Appeal Rules, Maurice Anthony Wanjala Muse sought to strike out a notice of appeal dated 11th August 2020 filed by John Simiyu Wepukhulu and ten others, arising from Case No. 17 of 2011 in the Environment & Land Court at Kitale. The applicant's case was that the respondents had been granted 14 days from 7th August 2020, by an order made on application before Nambuye, JA, within which to serve the notice of appeal, but served it only on 9th September 2020, contrary to that order and Rule 77(1) of the Rules. The evidence was uncontroverted: the respondents filed no replying affidavit, were absent at the hearing on 14th December 2021 despite service of the hearing notice, and filed no submissions. The Court of Appeal (Kiage, Ngugi and Tuiyott, JJA) held the application unanswerable, finding that failure to serve the notice within the time given was a failure to take an essential step within the meaning of Rule 84, and that the late service constituted a default of a condition imposed by the Court for the validation of the notice, leaving it incompetent. The motion was allowed; the notice of appeal was struck out with costs to the applicant. The ruling binds the Environment & Land Court and subordinate courts on the proposition that non-compliance with time conditions attached to extended time for service of a notice of appeal renders the notice incompetent and liable to be struck out under Rule 84.

Key legal issues

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01

Whether service of the notice of appeal outside the extended 14-day period warranted striking out

Holding

Yes; the uncontroverted failure to serve within the time granted was a failure to take an essential step under Rule 84 and a default of the Court's condition, rendering the notice incompetent.

Reasoning

Nambuye, JA had extended time for filing and service to 14 days from 7th August 2020. The respondents served only on 9th September 2020. The evidence was uncontroverted: no replying affidavit, no appearance, no submissions. The court treated non-service within the granted period as an essential-step failure under Rule 84 and a default of the condition validating the notice, leaving it incompetent and liable to be struck out.

p. 2

Legal principles established

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  • Failure to serve a notice of appeal within time extended by the Court is a failure to take an essential step within Rule 84, justifying striking out.
  • Late service of a notice of appeal constitutes default of a condition imposed by the Court, rendering the notice incompetent.

Court orders

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  1. 1.The notice of appeal dated 11th August 2020 is struck out with costs
  2. 2.The applicant shall have the costs of the motion

Authorities

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Legislation

  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 77(1)
On appeal from
Environment & Land Court at Kitale
Case No. 17 of 2011
Jurisdiction invoked
Rule 84 of the Court of Appeal Rules

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, "Muse v Wepukhulu & 10 others", Case Analysis (2022). Civil Application 111 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/503/eng@2022-04-28

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