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Court of AppealPartially AllowedCivil Application E087 of 2022· [2022] KECA 1058 (KLR)

Saicare Enterprises Limited v Mana Pharmacy & another

Court of Appeal
7 October 2022
1,323 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 struck out an appeal filed 78 days late, confirming that pending trial court applications do not pause the appeal deadline.

What this practically means

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Executive summary

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Saicare Enterprises Limited moved the Court of Appeal under Rule 84 to strike out a notice of appeal filed by Mana Pharmacy and Samuel Oulula Wangura against the judgment and decree of Majanja, J. in HCCC No. E044 of 2019, delivered on November 22, 2021. Rule 75(2) required the notice within 14 days, but it was filed on February 18, 2022 - some 78 days late. The respondents opposed, arguing that their trial court applications for stay of execution, setting aside the judgment, and leave for counsel to come on record meant time only began running on February 22, 2022 when the ruling on those applications was delivered. The Court rejected this, holding that a timely notice of appeal is a jurisdictional prerequisite per the Supreme Court's decision in Nicholas Kiptoo Arap Korir Salat, and that trial court applications do not suspend the time for appealing the judgment; the respondents' argument would only hold if they were appealing the ruling itself, which they were not. Finding no extension of time had legitimized the late filing, the Court struck out the notice of appeal with costs to the applicant. The ruling binds subordinate courts and the High Court on the point that interlocutory applications in the trial court do not stop time running for filing a notice of appeal against the underlying judgment.

Key legal issues

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01

Timeliness of the notice of appeal under Rule 75(2)

Holding

The notice of appeal filed 78 days after judgment was out of time; no extension of time had been obtained to legitimize it.

Reasoning

Judgment was delivered on November 22, 2021 and the notice of appeal was filed on February 18, 2022, far beyond the 14 days prescribed by Rule 75(2). The respondents conceded the dates. There was no evidence of any application or order for extension of time legitimizing the late filing, so the notice was a nullity as against the jurisdictional requirement.

p. 3
02

Whether trial court applications stopped time running

Holding

Applications for stay, setting aside and leave to come on record do not suspend the time for filing a notice of appeal against the judgment.

Reasoning

The respondents argued time began running on February 22, 2022 when the trial court ruled on their applications. The Court held that reasoning would only apply if the notice of appeal targeted that ruling; here the notice challenged the judgment and decree of November 22, 2021, so time ran from delivery of that judgment regardless of the pending applications.

p. 3

Legal principles established

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  • Filing a notice of appeal within the prescribed time is a jurisdictional prerequisite, not a technical matter; an appellate court without a timely notice cannot determine the appeal.
  • Interlocutory applications in the trial court (stay, setting aside, leave to come on record) do not stop time running for filing a notice of appeal against the judgment.

Court orders

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  1. 1.The notice of appeal dated March 17, 2022 is struck out with costs to the applicant
On appeal from
High Court of Kenya at Nairobi, Milimani
HCCC No. E044 of 2019
Jurisdiction invoked
Rule 84 of the Court of Appeal Rules

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, "Saicare Enterprises Limited v Mana Pharmacy & another", Case Analysis (2022). Civil Application E087 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1058/eng@2022-10-07

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