West Kenya Sugar Company Limited & 4 others v Cabinet Secretary, Ministry of Agriculture, Livestock and Fisheries & 50004 others
The bottom line
#The Court of Appeal struck out West Kenya Sugar's appeal because missed filing deadlines and failure to serve documents made it fatally defective.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the striking-out application under Rule 84
The motion filed April 11, 2018 was within 30 days of the applicant learning of the notice of appeal and record of appeal on March 12, 2018, and was not caught by the proviso since the notice was never served on the applicant.
The court relied on the uncontroverted affidavit evidence of Jayantilal Patel that the applicant learnt of the notice and record of appeal on March 12, 2018 through an advocate. The 1st appellant's argument that the applicant could not introduce that date in submissions failed because it was a matter of evidence in the supporting affidavit. The proviso to Rule 84 contemplates service, which did not occur here.
Consequences of failure to serve notice of appeal under Rule 77
Failure to serve the notice of appeal on the applicant within 7 days, or at all other than as part of the record, made the notice of appeal defective and incompetent against all respondents.
Following Daniel Nkirimpa Monirei v Sayialel Ole Koilel & 4 others, the court held that non-service on one affected person makes the notice defective, and it matters not that other affected persons were served on time. Service of the notice of appeal is not severable; a defective notice cannot stand against some respondents only.
Exclusion of time under the proviso to Rule 82(1)
Because the 1st appellant did not serve the letter bespeaking proceedings on the applicant, it could not benefit from exclusion of time for preparation of proceedings, and the appeal had to be instituted within 60 days of lodging the notice.
Rule 82(2) expressly conditions reliance on the proviso on a written application for proceedings served on the respondent. Non-service disqualifies the appellant from the exclusion. The 60 days from July 7, 2017 lapsed on September 6, 2017, yet the appeal was filed on March 5, 2018, far out of time.
Computation of time from collection of proceedings
Even if the letter had been served, time ran from November 10, 2017 when proceedings were collected, since the 1st appellant did not explain the delay in issuing the certificate of delay; 60 days lapsed on February 1, 2018.
The certificate of delay showed proceedings were ready and collected on November 10, 2017. The 1st appellant did not explain why the certificate issued only on February 28, 2018, over two months later. Absent explanation, time is computed from collection. Even excluding the Christmas break, the appeal filed March 5, 2018 was out of time.
Late lodging of the notice of appeal under Rule 75(2)
The notice of appeal lodged on July 7, 2017 was two days late, as the 14 days from delivery of judgment on June 21, 2017 lapsed on July 5, 2017, rendering everything built on it incompetent.
Although not taken up in the motion, the court noted sua sponte that the notice of appeal was lodged outside the 14-day period prescribed by Rule 75(2). A notice lodged out of time is a nullity; everything founded on it, including the appeal, falls away as incompetent.
Legal principles established
#- Failure to serve the notice of appeal on one person directly affected renders the notice of appeal defective against all respondents; service is not severable.
- An appellant cannot rely on the proviso to Rule 82(1) to exclude time for preparation of proceedings unless the application for the copy was in writing and served on the respondent.
- An application to strike out a notice of appeal or appeal may be brought before or after institution of the appeal, but not after expiry of 30 days from service of the notice of appeal or record of appeal.
- Article 159 of the Constitution cannot be used to cure non-compliance with the Court of Appeal Rules where the Rules themselves provide avenues for relief.
Court orders
#- 1.The application of April 9, 2018 is allowed
- 2.Costs to the applicant
- On appeal from
- High Court of Kenya at Kakamega
- Constitutional Petition 26 of 2014
- Jurisdiction invoked
- Court of Appeal Rules 2010, Rules 84 and 42 (application to strike out notice of appeal and appeal); inherent jurisdiction under sections 3A and 3B of the Appellate Jurisdiction Act Cap. 9 invoked by the 1st appellant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "West Kenya Sugar Company Limited & 4 others v Cabinet Secretary, Ministry of Agriculture, Livestock and Fisheries & 50004 others", Case Analysis (2022). Civil Appeal (Application) 22 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/675/eng@2022-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.