Omaido v Omunga & 3 others
The bottom line
#Kenya's Court of Appeal struck out an appeal filed late because the appellant couldn't prove they properly served a key letter on the other side.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to the proviso to rule 82(2)
The respondents were not entitled to the proviso because there was no evidence of service of the letter bespeaking proceedings; they neither served nor copied it.
The court found it common ground that the notice of appeal was filed on time but served out of the seven days prescribed by rule 77(1). Rule 82(2) requires service of the letter bespeaking proceedings to trigger the proviso extending the 60-day period. The applicant admitted service of the notice of appeal but flatly denied service of the bespeaking letter, and no evidence of such service appeared on the record. The onus of proving service lay on the respondents, who failed to discharge it.
Consequence of filing the record of appeal out of time
Having lost the benefit of the proviso, the respondents should have filed the record within 60 days of the notice of appeal; even counting from the certificate of delay, the record was admittedly filed and served out of time, so it was incompetent and struck out.
The effect of disentitlement to the proviso was that the 60-day period ran from filing of the notice of appeal. Even if the certificate of delay dated 28th June 2021 were taken into account, the respondents conceded the record was filed on 5th October 2021 and served on 9th December 2021, both out of time, blaming an unnamed clerk. Delay attributable to a clerk's mistake could not save an incompetent appeal in a striking-out application.
Relevance of extension-of-time authorities to striking-out applications
Decisions on extension of time under Rule 4, and the Pattni case on obstructed service, do not aid a respondent resisting a striking-out application for an appeal filed out of time.
The respondents relied on Charles Karanja Kiiru and other decisions, but the court noted those authorities are relevant to Rule 4 extension-of-time applications, not to striking out an appeal filed out of time. Kamlesh Pattni was distinguishable because there the record was found filed and served on time, or the complaining party had obstructed service; neither finding aids the respondents here.
Legal principles established
#- Rule 82(2) requires an appellant to serve, not merely copy, the letter bespeaking the proceedings on the opposite party; without such service the proviso to rule 82(2) is unavailable and the record of appeal must be filed within 60 days of the notice of appeal.
- The burden of proving service of the letter bespeaking proceedings lies on the appellant.
- A record of appeal filed out of time without leave is incompetent and liable to be struck out on motion under Rules 82, 83 and 84.
Court orders
#- 1.The respondents' record of appeal filed on 5th October 2021 is struck out
- 2.Costs of the application to the applicant
- On appeal from
- Environment & Land Court at Kisumu
- Jurisdiction invoked
- Rules 82, 83 and 84 of the Court of Appeal Rules (inherent supervisory jurisdiction over competence of appeals filed in the Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omaido v Omunga & 3 others", Case Analysis (2022). Civil Application E181 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/839/eng@2022-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.