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Court of AppealDismissedCivil Appeal (Application) 160 of 2019· [2022] KECA 613 (KLR)

African Service Maintenance Limited v Comarco Supply Base (EPZ) Limited & another

Court of Appeal
6 May 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
2,409 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed an attempt to strike out an appeal because the striking-out application itself was filed late, confirming strict 30-day deadlines.

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 (Kairu, Nyamweya and Lesiit, JJA) on a Notice of Motion dated February 21, 2021 by Comarco Supply Base (EPZ) Limited, the 1st Respondent in the substantive appeal, seeking to strike out African Service Maintenance Limited's Notice of Appeal and appeal as incompetent. Comarco argued that the Notice of Appeal was served a day late contrary to Rule 77(1), that the Record of Appeal was filed roughly a year after the High Court ruling of 16th November 2018 (by Njoki Mwangi J, which had upheld a jurisdictional objection and struck out the suit against Comarco) contrary to Rule 82, and that the appellant applied for uncertified rather than certified proceedings. The appellant countered with a preliminary objection under the proviso to Rule 84, contending the striking-out application was itself out of time, and relied on a Certificate of Delay showing certified proceedings were supplied on 15th November 2019. The Court upheld the preliminary objection, holding that the striking-out application lodged on 27th February 2020 exceeded the thirty-day window in the proviso to Rule 84 and no extension of time had been sought. On the merits, it held service on 30th November 2018 was within the seven days once the lodging date was excluded under Rule 3(a), and that the Certificate of Delay validly excluded the preparation period, making the Record of Appeal filed 18th December 2019 timely. The application was dismissed with costs to the appellant. The substantive appeal remains pending.

Key legal issues

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01

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

Holding

The application, lodged 27th February 2020, was out of time as against the Notice of Appeal served 30th November 2018, and was incompetent absent extension of time.

Reasoning

The proviso to Rule 84 requires a striking-out application within thirty days of service of the notice of appeal or record of appeal. Service of the Notice of Appeal on 30th November 2018 was undisputed; the application came months later. The remedy for a party caught by lapse of time is an application under Rule 4, which the Applicant did not pursue.

p. 3
02

Service of the Notice of Appeal under Rule 77(1)

Holding

Service on 30th November 2018 was within the seven days, since the lodging date of 23rd November 2018 is excluded in computing time.

Reasoning

Rule 77(1) requires service within seven days of lodging; Rule 3(a) excludes the day of the act. Time therefore ran from 24th November 2018 and expired on 30th November 2018, the very day service was effected. The Applicant's contrary computation wrongly included the lodging day.

p. 4
03

Filing of the Record of Appeal under Rule 82 and the Certificate of Delay

Holding

The Certificate of Delay excluded the period to 15th November 2019; the sixty days ran from 16th November 2019 to 16th January 2020, so the Record filed 18th December 2019 was in time.

Reasoning

Rule 82 excludes the period covered by a Registrar's Certificate of Delay. The Applicant's argument that only uncertified copies were needed, and the certification of the proceedings, do not affect the validity of the certificate. The authorities relied on were distinguishable because no certificate of delay issued in them.

Legal principles established

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  • An application to strike out a notice of appeal or appeal under Rule 84 must be brought within thirty days of service, failing which it is incompetent unless time is extended.
  • In computing time under the Court of Appeal Rules, the day on which the act is done is excluded (Rule 3(a)).
  • A valid Certificate of Delay excludes the preparation period from computation of time under Rule 82, and whether the proceedings were certified is immaterial to the certificate's validity.

Court orders

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  1. 1.The Applicant's Notice of Motion dated February 21, 2021 is dismissed with costs to the Appellant

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 77(1)
  • Court of Appeal Rules, 2010Rule 82
  • Court of Appeal Rules, 2010Rule 82(1)
  • Court of Appeal Rules, 2010Rule 84 (and proviso)
  • Court of Appeal Rules, 2010Rule 87(1)
  • Court of Appeal Rules, 2010Rule 3(a)
  • Court of Appeal Rules, 2010Rule 4

Cases cited (7)

  • Mistry Premji Ganji (Investments) Limited vs Kenya National Highways Authority
    [2019] eKLR

    That Rule 77(1) is couched in mandatory terms (relied on by the Applicant).

  • Rodgers Abisai t/a Abisai & Company Advocates vs Wachira Waruru & another
    [2009] eKLR

    That certified copies of proceedings and judgment are not necessary documents for an appeal; certification immaterial to certificate of delay.

  • L. Z Engineering Construction Limited vs Trade Bank Limited (in Liquidation)
    [2000] eKLR

    That certified copies of proceedings and judgment are not necessary documents for the purposes of an appeal.

  • Joyce Bochere Nyamweya vs Jemima Nyaboke Nyamweya & another
    [2016] eKLR

    Mandatory nature of the proviso to Rule 84; striking-out applications must be filed within 30 days of service.

  • Salama Beach Hotel Limited & 4 others vs Kenyariri & Associated Advocates & 4 others
    (2016) eKLR

    Purpose of the proviso to Rule 84 and fate of out-of-time Rule 84 applications.

  • William Mwangi Nguruki v Barclays Bank of Kenya Ltd
    [2014] eKLR

    A striking-out application brought after 30 days from service is incompetent unless leave is obtained.

  • Michael Mwalo v Board of Trustees of National Social Security Fund
    [2014] eKLR

    Cited in support of the Rule 84 timeline jurisprudence.

On appeal from
High Court of Kenya at Mombasa
Civil Suit No 15 of 2018
Jurisdiction invoked
Court of Appeal Rules, 2010 (Rules 77, 82, 84) - interlocutory application within a pending appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "African Service Maintenance Limited v Comarco Supply Base (EPZ) Limited & another", Case Analysis (2022). Civil Appeal (Application) 160 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/613/eng@2022-05-06

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