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Court of AppealStruck OutCivil Application E007 of 2022· [2022] KECA 766 (KLR)

Owners of the Motor Vehicle "Tanya" v Shipmarc Agency & Logistics Limited

Court of Appeal
24 June 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
2,185 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 a late attempt to kill an appeal, confirming the 30-day deadline to challenge a notice of appeal is strict.

What this practically means

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Executive summary

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The Owners of the Motor Vessel "Tanya" moved the Court of Appeal at Mombasa under Rules 42, 77, 83 and 84 of the Court of Appeal Rules, 2010, seeking to have Shipmarc Agency & Logistics Limited's notice of appeal dated 28th September 2021 deemed withdrawn or struck out. The notice of appeal targeted the High Court ruling of 24th September 2021 (Chepkwony, J) in Admiralty Claim No. 3 of 2020, which had arisen from competing applications over a warrant of arrest against the vessel in a claim for goods, services and a maritime lien. The applicant argued that the respondent failed to lodge the appeal within 60 days and failed to serve the letter bespeaking proceedings. The respondent countered that the appeal had already been lodged, that the court file went missing causing delay, and that the striking-out application was itself filed outside the 30-day window in the proviso to Rule 84. The Court agreed with the respondent on both limbs. Rule 83's deeming provision applies only where an appeal has not been instituted, and institution was not disputed. As to Rule 84, the proviso is mandatory: the application, filed nearly five months after service of the notice of appeal without leave under Rule 4, was incompetent and ousted the Court's jurisdiction to consider it on merit. The Court struck out the application with costs to the respondent. The respondent's notice of appeal therefore remains in place, and the underlying High Court ruling is undisturbed by this ruling.

Key legal issues

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01

Applicability of Rule 83 deeming provision

Holding

Rule 83 does not apply because the respondent had already lodged its appeal; the rule targets default in instituting an appeal, not delay in serving filed documents.

Reasoning

The Court found the notice of appeal was lodged and served within time. Although the record and memorandum of appeal were filed but never served, Rule 83 is triggered only by failure to institute an appeal within the appointed time. Since institution was not disputed, the deeming provision could not be invoked to withdraw the notice of appeal.

p. 3
02

Competence of the Rule 84 striking-out application filed out of time

Holding

The proviso to Rule 84 is mandatory; an application to strike out filed more than thirty days after service of the notice of appeal, without extension of time under Rule 4, is incompetent and deprives the Court of jurisdiction to hear it on merit.

Reasoning

The notice of appeal was served on 7th October 2021, so the 30-day period expired in early November 2021. The motion was filed on 17th February 2022, nearly five months later, without any application for extension of time. Following Joyce Bochere Nyamweya and Salama Beach Hotel, the Court held the application fatally defective and struck it out.

p. 4

Legal principles established

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  • An application to strike out a notice of appeal under Rule 84 must be filed within thirty days of service of the notice of appeal; applications filed out of time without leave are incompetent and oust the Court's jurisdiction to consider them on merit.
  • A party intending to bring a Rule 84 application out of time must first seek extension of time under Rule 4 of the Court of Appeal Rules.
  • Rule 83's deeming provision applies only where a party who lodged a notice of appeal fails to institute an appeal within the appointed time; it does not apply where the appeal has already been filed.

Court orders

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  1. 1.The application dated 17th February 2022 is struck out with costs to the respondent

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 42
  • Court of Appeal Rules, 2010Rule 77(1)
  • Court of Appeal Rules, 2010Rule 81
  • Court of Appeal Rules, 2010Rule 82(1) & (2)
  • Court of Appeal Rules, 2010Rule 83
  • Court of Appeal Rules, 2010Rule 84 and proviso

Cases cited (6)

  • Mae Properties Limited v. Joseph Kibe & Another
    (2017) eKLR

    Failure to comply with timelines has consequences

  • John Mutai Mwangi & 26 Others vs. Mwenja Ngure & 4 Others
    [supra]

    Intent and purport of Rule 83 as an inbuilt case-management deeming provision

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

    Proviso to Rule 84 is mandatory; out-of-time striking-out applications are incompetent

  • Salama Beach Hotel Limited & 4 others v Kenyariri & Associates Advocates & 4 others
    [2016] eKLR

    Out-of-time Rule 84 applications are fatally defective; remedy is Rule 4 extension

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

    Striking-out application after 30 days is incompetent unless leave is obtained

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

    Same proposition on out-of-time Rule 84 applications

On appeal from
High Court at Mombasa
High Court Admiralty Claim No. 3 of 2020
Jurisdiction invoked
Rules 42, 77, 82(1) & (2), 83 and 84 of the Court of Appeal Rules, 2010

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, "Owners of the Motor Vehicle "Tanya" v Shipmarc Agency & Logistics Limited", Case Analysis (2022). Civil Application E007 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/766/eng@2022-06-24

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