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Court of AppealPartially AllowedCivil Application 38 of 2019· [2022] KECA 669 (KLR)

Mongereki v Mudoki & another

Court of Appeal
8 July 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
884 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a seven-year-old dormant appeal, confirming that filing a Notice of Appeal without prosecuting it will cost you the appeal.

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 at Mombasa (Kairu, Nyamweya and Lesiit, JJA) on a Motion dated 24th May 2019 by the applicant, Sammy Kanyangi Mongereki, seeking leave to extend time to apply to strike out a Notice of Appeal dated 10th March 2015 filed by the respondents following the judgment of Angote, J of the Environment and Land Court at Malindi in ELC No. 20 of 2010 delivered on 27th February 2015. The applicant also sought striking out of the Notice of Appeal and vacation of a stay order of 2nd October 2015. The application was heard virtually on 23rd March 2022 with only the applicant's counsel present despite service. The court noted it could not locate on the file a ruling said to have been issued by Okwengu, JA extending time to file the application, but held that the incompleteness of the record could not be visited on the applicant, and presumed the extension had been granted. Applying Tome v Attorney General on the mandatory 30-day proviso to Rule 84 [now 86], and Salat v IEBC on striking out as a draconian last resort, the court found that the respondents had taken no step to prosecute their appeal since obtaining the stay in 2015 - seven years after judgment - demonstrating no intention to pursue it. The court allowed the Motion, struck out the Notice of Appeal, and awarded costs of the application to the applicant. The stay order was not expressly vacated in the final orders.

Key legal issues

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01

Whether the delay in moving to strike out the Notice of Appeal could be excused

Holding

Yes - the court presumed a single Judge (Okwengu, JA) had extended time, as the missing ruling could not be visited on the applicant

Reasoning

The ruling extending time could not be found on the file, but the court held that incompleteness of the court record cannot prejudice the applicant or his counsel, and took it that the extension order had been obtained before the single Judge.

p. 2
02

Whether the Notice of Appeal should be struck out for want of prosecution

Holding

Yes - seven years after judgment, with no memorandum of appeal filed, the respondent showed no intention to pursue the appeal

Reasoning

The respondents filed a notice of appeal and obtained a stay in 2015 but took no further step to prosecute the appeal. The court found this a clear and fit case to exercise its discretion to strike out the Notice of Appeal.

p. 2

Legal principles established

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  • An application to strike out a Notice or Record of Appeal must be brought within 30 days of service of the pleading; non-compliance renders it fatally defective
  • Striking out pleadings is a draconian measure to be employed only as a last resort in the clearest of cases

Court orders

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  1. 1.The Notice of Motion dated 24th May 2019 is allowed
  2. 2.The Notice of Appeal dated 11th March 2015 is struck out
  3. 3.Costs of the application to the applicant

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 84 [86]

Cases cited (2)

  • Tome & another v Attorney General & 2 others
    (Miscellaneous Civil Application 185 of 2019) [2021] KECA 150 (KLR)

    Mandatory 30-day period under proviso to Rule 84 [now 86] for striking-out applications; non-compliance is fatal

  • Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 6 others
    [2013] eKLR

    Striking out pleadings is a draconian measure to be used only as a last resort in the clearest of cases

On appeal from
Environment and Land Court at Malindi
ELC No. 20 of 2010
Jurisdiction invoked
Rules 4 and 84 [86] 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, "Mongereki v Mudoki & another", Case Analysis (2022). Civil Application 38 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/669/eng@2022-07-08

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