Sea Angel Service Station v Abdul
The bottom line
#Kenya's Court of Appeal struck out an appeal record because the appellant never proved it served its request for court proceedings on the other side, voiding its Certificate of Delay.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the application to strike out
The application was competently filed, having been lodged within thirty days of service of the Record of Appeal on 30th August 2019.
The proviso to Rule 84 of the Court of Appeal Rules, 2010 requires a striking-out application to be brought within thirty days of service of the notice of appeal or record of appeal. Service occurred on 30th August 2019 and the motion was lodged on 30th September 2019, exactly within the window, so the threshold requirement was met.
Two notices of appeal
The duplication was adequately explained by a clerical error in the date of delivery of the judgment and was not fatal; the notice lodged on 17th May 2017, within fourteen days of the 3rd May 2017 judgment, is the valid notice.
The High Court had corrected the judgment's date of delivery, explaining the second notice. Since two notices cannot subsist for one appeal, the court identified the timely first notice as valid, and the record of appeal and its filing timelines attach to that notice.
Reliance on the Certificate of Delay and timeliness of the Record of Appeal
Without evidence of service of the request for proceedings on the Respondent within the required timelines, the Certificate of Delay could not be relied on; the Record of Appeal filed on 26th August 2019 was out of time and was struck out.
Rule 82(2) mandatorily required the written request for proceedings to be served on the respondent within thirty days of the decision. The Appellant produced no evidence of such service and did not explain the omission, so the certified extension of time under the proviso was unavailable and the record, filed beyond sixty days, was incompetent.
Legal principles established
#- An appellant cannot rely on a Certificate of Delay under the proviso to Rule 82(1) unless the application for a copy of proceedings was in writing and served on the respondent within thirty days of the decision, as required by Rule 82(2).
- There cannot be two notices of appeal in respect of the same appeal; the notice lodged within fourteen days of the decision is the valid one.
- An application to strike out a notice of appeal or record of appeal under Rule 84 must be brought within thirty days of service of the notice of appeal or record of appeal.
Court orders
#- 1.The Record of Appeal lodged on 26th August 2017 is struck out
- 2.Costs of the application awarded to the Respondent
- On appeal from
- High Court at Mombasa
- MSA HC Civil Appeal No. 108 of 2013
- Jurisdiction invoked
- Rules 42 and 84 of the Court of Appeal Rules, 2010 (application to strike out a Record of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chege (Suing as a Personal Representative of the Estate of Julius Chege Kiongo - Deceased) ((Suing as a Personal Representative of the Estate of Julius Chege Kiongo - Deceased)) v Amaingu & 8 others (Environment & Land Case 108 of 2016 & 34 of 2019 (Consolidated)) [2025] KEELC 4331 (KLR)[2025] KEELC 4331 (KLR)9 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Sea Angel Service Station v Abdul", Case Analysis (2022). Civil Appeal (Application) 116 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/989/eng@2022-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.