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Court of AppealPartially AllowedCivil Application 59 of 2019· [2022] KECA 985 (KLR)

Vitrociset S P A Kenya Branch v Hussein

Court of Appeal
23 September 2022
AMA.K. MurgorPNP. NyamweyaJLJ. Lesiit
1,944 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Vitrociset S P A Kenya Branch applied under rule 84 of the Court of Appeal Rules, 2010 to strike out Musaji Inayat Hussein's notice of appeal dated 12th October 2018 and record of appeal filed 10th May 2019, both arising from a judgment of Ndolo, J. of the Employment and Labour Relations Court at Malindi delivered on 26th September 2018. The applicant argued the notice was lodged 10 days out of time without extension, and that the respondent never served the request for typed proceedings, disentitling him from the proviso to rule 82. The respondent, though absent, filed written submissions contending the application itself was out of time under rule 84 and that a certificate of delay regularised the record. The court, in a single judgment of the full bench, applied its earlier decisions in Charles Wanjohi Wathuku and John Mutai Mwangi on the strictures of rule 82. It held that the proviso to rule 84 requires a striking-out application within 30 days of service of the process sought to be vitiated; the application against the notice of appeal, filed 17th May 2019, was therefore incompetent. However, as against the record of appeal, filed only a week before the application, the court had jurisdiction. Because the respondent failed to serve the request for typed proceedings as rule 82(2) mandates, he could not rely on the certificate of delay to explain an eight-month delay, and the record was struck out. The application was partially allowed with costs to the applicant; the prayer to strike out the notice of appeal was declined. The appeal itself was not determined and the ELRC judgment was not disturbed.

Key legal issues

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01

Time limit for applications to strike out under rule 84

Holding

The proviso to rule 84 bars any application to strike out a notice of appeal or record of appeal brought more than 30 days after service of that process. The application against the notice of appeal, filed 17th May 2019, was out of time and incompetent.

Reasoning

The court read rule 84 and its proviso together: the remedy of striking out is available only if sought within 30 days of service of the notice of appeal or record of appeal. Since the notice was lodged 19th October 2018 and the application filed 17th May 2019, the 30-day window had long lapsed, so the striking out of the notice could not be granted.

p. 2
02

Entitlement to rely on the proviso to rule 82 and certificate of delay

Holding

Because the respondent did not serve the applicant with the request for typed proceedings as required by rule 82(2), he could not rely on the certificate of delay; the record of appeal filed 10th May 2019 was therefore out of time and was struck out.

Reasoning

Rule 82(1) requires institution of an appeal within 60 days, with the proviso excluding time certified for preparation of proceedings only where the request was made in accordance with sub-rule (2), which mandates written service on the respondent. Non-service disentitled the respondent to the exclusion, leaving an approximately eight-month delay unexplained and the record improperly filed.

p. 4
03

Timeliness of the application against the record of appeal

Holding

Unlike the notice of appeal, the application against the record of appeal was brought within 30 days of its filing, so the court had jurisdiction to strike out the record.

Reasoning

The record of appeal was filed on 10th May 2019 and the application on 17th May 2019, within the 30-day period in the proviso to rule 84. The court therefore had power to strike out the record, and did so because the appeal had not been instituted in accordance with the 2010 Rules.

p. 4

Legal principles established

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  • An application under rule 84 to strike out a notice of appeal or record of appeal must be brought within 30 days of service of the process sought to be vitiated; outside that window it is incompetent.
  • An appellant who fails to serve the respondent with a copy of the request for typed proceedings cannot rely on the proviso to rule 82(1) or a certificate of delay to exclude the preparation period.

Court orders

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  1. 1.The record of appeal lodged in this Court on 10th May 2019 is struck out
  2. 2.The notice of motion dated 17th May 2019 is partially allowed only to the extent of striking out the record of appeal, with costs to the applicant
  3. 3.The prayer to strike out the notice of appeal dated 12th October 2018 is declined

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 75(2)
  • Court of Appeal Rules, 2010Rule 82(1), (2)
  • Court of Appeal Rules, 2010Rule 84
  • Court of Appeal Rules, 2010Rule 115

Cases cited (2)

  • Charles Wanjohi Wathuku vs Githinji Ngure & Another
    [2016] eKLR

    Strictness of rule 82 timelines; certificate of delay suffices to exclude delay beyond 60 days where proceedings bespoken and served.

  • John Mutai Mwangi & 26 Others vs. Mwenja Ngure & 4 Others
    [2016] eKLR

    Upheld by Charles Wanjohi Wathuku on the strictures of rule 82.

On appeal from
Employment and Labour Relations Court at Malindi
ELRC No. 19 of 2017
Jurisdiction invoked
Rule 84 of the Court of Appeal Rules, 2010 (application to strike out notice or record of appeal)

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, "Vitrociset S P A Kenya Branch v Hussein", Case Analysis (2022). Civil Application 59 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/985/eng@2022-09-23

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