Stephens Kithi Ngombo t/a Steve Kithi & Co. Advocates v China Wu Yi (Kenya) Company Ltd
The bottom line
#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
#Executive summary
#Key legal issues
#Timeliness of the notice of appeal under Rule 75
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.
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.
Timeliness of the memorandum and record of appeal under Rule 82
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.
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.
Whether the appeal should be struck out
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.
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.
Legal principles established
#- 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
#- 1.The appellant was granted 21 days from the date of delivery of the ruling to take steps to regularize the appeal
- 2.Failing regularization within 21 days, the appeal will stand struck out with costs without further ado
- 3.The applicant (respondent) was awarded the costs of the application in any event
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.