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Court of AppealPartially AllowedCivil Application E004 of 2022· [2022] KECA 696 (KLR)

Nyaribari & another v Kenya Alliance Insurance Co. Ltd

Court of Appeal
22 July 2022
PKP. KiageKMK. M'inotiMNMumbi Ngugi
968 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out an insurance company's appeal notice because it was served late, confirming that court deadlines must be met or an extension sought.

What this practically means

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Executive summary

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The High Court at Nyamira (Maina, J.) delivered judgment on 28th October 2021 in HCCC No. 1 of 2019, aggrieving Kenya Alliance Insurance Co. Ltd, which lodged a notice of appeal on 29th October 2021 but served it on the applicants' advocates only on 22nd November 2021, well beyond the seven days prescribed by rule 77(1) of the Court of Appeal Rules. The applicants moved the Court of Appeal at Kisumu to strike out the notice. The respondent admitted late service but blamed the trial judge's transfer and custody of the court file, and invoked Article 159(2)(c); it also argued the striking-out application was itself incompetent as filed outside rule 84's 30 days. The Court held the application was competent: computing from 23rd November 2021 to 17th January 2022 and excluding the Christmas recess (21st December 2021 to 13th January 2022) under rule 3, it was filed within 28 days. On the merits, the Court found the explanation disingenuous, since a lodged notice of appeal is availed for service immediately, and the court's letter of 22nd November 2021 forwarded only the judgment. The respondent had also never sought extension of time before a single judge. Applying Salat and Kiruja Kithinji, the Court held that compliance with timelines is not undue regard to technicalities. The notice of appeal was struck out with costs to the applicants.

Key legal issues

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01

Competence of the striking-out application filed outside 30 days

Holding

The application was filed within time once the Christmas recess was excluded under rule 3.

Reasoning

Service occurred on 22nd November 2021; computing from 23rd November 2021 to 17th January 2022 and excluding the recess from 21st December 2021 to 13th January 2022, the application was filed within 28 days, satisfying rule 84's proviso.

p. 2
02

Whether the notice of appeal served out of time should be struck out

Holding

Yes; the respondent's explanation blaming the trial judge was disingenuous and no extension of time was sought.

Reasoning

The notice was date-stamped and lodged on 29th October 2021 and was then availed for service; the court's later letter forwarded only the judgment. The respondent admitted late service, offered no adequate explanation, and never applied to a single judge to deem the notice filed in time.

p. 2

Legal principles established

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  • An application to strike out a notice of appeal under rule 84 must be made within 30 days of service of the notice, computed excluding the Court's Christmas recess under rule 3.
  • Once a notice of appeal is lodged it is availed to the filing party for service; delay in supplying the judgment does not excuse late service of the notice.
  • Compliance with prescribed timelines is not a procedural technicality, particularly where the rules afford a remedy of extension of time.

Court orders

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  1. 1.The notice of appeal lodged on 29th October 2021 is struck out
  2. 2.Costs of the application to the applicants

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(c)
  • Court of Appeal Rulesrule 77(1)
  • Court of Appeal Rulesrule 84 (and proviso)
  • Court of Appeal Rulesrule 3

Cases cited (2)

  • Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR

    Where a law prescribes a time for doing an act, lapse of time requires an application for extension of time.

  • Patrick Kiruja Kithinji v. Victor Mugira Marete
    [2015] eKLR

    Compliance with prescribed timelines is not undue regard to procedural technicalities.

On appeal from
High Court of Kenya at Nyamira
HCCC No. 1 of 2019
Jurisdiction invoked
Court of Appeal Rules, rules 77(1), 84 and 3; Article 159(2)(c) of the Constitution considered

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Nyaribari & another v Kenya Alliance Insurance Co. Ltd", Case Analysis (2022). Civil Application E004 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/696/eng@2022-07-22

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