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Court of AppealPartially AllowedCivil Appeal (Application) E097 of 2021· [2022] KECA 767 (KLR)

Stephens Kithi Ngombo t/a Steve Kithi & Co. Advocates v China Wu Yi (Kenya) Company Ltd

Court of Appeal
24 June 2022
1,093 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 confirmed that late filing of a notice of appeal strips it of jurisdiction, but gave the advocate 21 days to fix the appeal.

What this practically means

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Executive summary

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China Wu Yi (Kenya) Company Ltd applied under Rule 84 of the Court of Appeal Rules for an order striking out the appellants' appeal, filed on 23rd November 2021, on the ground that it was filed out of time. The appeal was against a ruling of the High Court at Mombasa (Chepkwony, J.) delivered on 13th January 2021 in High Court Civil Case No. 89 of 2019. The court found no contest that the notice of appeal, dated 8th February 2021 and filed on 9th February 2021, was lodged outside the fourteen days prescribed by Rule 75, time having lapsed on 27th January 2021. The memorandum and record of appeal, filed on 23rd November 2021, were also outside the sixty days allowed by Rule 82, and the appellant had not served the letter requesting proceedings as Rule 82 requires. The appellants' explanation - that notice of delivery of the ruling was not given and the respondent was absent when it was delivered - was rejected as a ground of excuse, the court holding that time runs from the date of the decision and that absence from delivery is only a factor in an extension-of-time application. Applying Boy Juma Boy, Apungu Arthur Kibira and the Supreme Court's decision in University of Eldoret v Sitienei, the court held the application had merit but, in lieu of striking out the appeal immediately, allowed the appellant 21 days to regularize the appeal, failing which it would stand struck out with costs. The applicant was awarded the costs of the application in any event.

Key legal issues

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01

Timeliness of the notice of appeal under Rule 75

Holding

The notice of appeal dated 8th February 2021 was filed out of time, as the fourteen days from the 13th January 2021 decision lapsed on 27th January 2021.

Reasoning

Rule 75 requires notice of appeal to be lodged within fourteen days of the date of the decision appealed against. The decision was delivered on 13th January 2021, so time expired on 27th January 2021. The appellants did not contest the late filing, only explaining that notice of delivery of the ruling was not given, which the court held is a matter for an extension application, not a defence to late filing.

p. 1
02

Timeliness of the memorandum and record of appeal under Rule 82

Holding

The memorandum and record of appeal filed on 23rd November 2021 were also filed outside the sixty-day period prescribed by Rule 82, and the appellant did not serve the letter requesting proceedings as required.

Reasoning

Rule 82 requires filing within sixty days of the lodging of the notice of appeal. The record was filed on 23rd November 2021, well outside that period. The court further noted it was uncontested that the appellant never served the respondent with the letter requesting a copy of the proceedings in accordance with Rule 82, compounding the procedural irregularities.

p. 2
03

Whether the appeal should be struck out

Holding

The application had merit, but instead of striking out the appeal immediately, the court gave the appellant 21 days to regularize the appeal, failing which it would stand struck out with costs.

Reasoning

Relying on authority that the notice of appeal anchors the court's jurisdiction and that a notice filed out of time cannot be sanctioned, the court found merit in the application. However, it exercised a measure of discretion by allowing 21 days to regularize rather than striking out immediately, while awarding the applicant the costs of the application in any event.

p. 2

Legal principles established

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  • The notice of appeal is a jurisdictional prerequisite; without a timely filed notice the Court of Appeal has no jurisdiction over an appeal.
  • Time for filing a notice of appeal runs from the date of the decision, and absence from delivery of the ruling is only a factor in an extension-of-time application, not an excuse for late filing.

Court orders

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  1. 1.The appellant was granted 21 days from the date of delivery of the ruling to take steps to regularize the appeal
  2. 2.Failing regularization within 21 days, the appeal will stand struck out with costs without further ado
  3. 3.The applicant (respondent) was awarded the costs of the application in any event

Authorities

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Legislation

  • Court of Appeal RulesRule 75
  • Court of Appeal RulesRule 82
  • Court of Appeal RulesRule 84

Cases cited (3)

  • Boy Juma Boy & 2 Others -v- Mwamlole Tchappu Mbwana & Another
    (2014) eKLR

    The notice of appeal triggers the appellate jurisdiction; without it the court has no basis for jurisdiction.

  • Apungu Arthur Kibira vs. Independent Electoral and Boundaries Commission & 2 others
    [2018] eKLR

    A notice of appeal occupies a central place; it gives the Court jurisdiction to hear an appeal.

  • University of Eldoret & another vs Sitienei & 3 others
    [2020] eKLR

    Filing of a notice of appeal is a jurisdictional prerequisite; a notice filed without leave and out of time must be struck out.

On appeal from
High Court of Kenya at Mombasa
High Court Civil Case No. 89 of 2019
Jurisdiction invoked
Rule 84 of the Court of Appeal Rules (application to strike out an appeal filed out of time)

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, "Stephens Kithi Ngombo t/a Steve Kithi & Co. Advocates v China Wu Yi (Kenya) Company Ltd", Case Analysis (2022). Civil Appeal (Application) E097 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/767/eng@2022-06-24

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