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Court of AppealStruck OutCivil Appeal (Application) 152 of 2019· [2022] KECA 1063 (KLR)

Hussein Abdalla Said v Yawa Chome Shume

Court of Appeal
7 October 2022
JLJW Lessit
1,352 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot revive a struck-out appeal with an extension of time; you must apply afresh for leave to file a new appeal record.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal (Lessit, JA) on an application dated 10th March 2022 seeking extension of time to serve a Notice of Appeal (filed 1st July 2019) and Record of Appeal (lodged 22nd November 2019) against the judgment of Olola, J in ELC Case No. 52 of 2010 delivered on 26th June 2019. The applicant blamed successive advocates' unprofessional conduct for the failure of service, arguing that counsel's mistake should not be visited on the client and invoking the substantive-justice ethos of Article 159(2)(d) and Sections 3A and 3B of the Appellate Jurisdiction Act. The respondent opposed, contending the application sought to breathe life into pleadings already struck out by the Court's ruling of 4th February 2022, and that no cogent reason justified over three years of delay. The court agreed with the respondent: the effect of striking out is to do away with the record of appeal, which no longer exists, so there is nothing whose service timeline can be extended. Citing Robinson v Muthami and Ngoni Matengo v Osman, the court held that an appellant whose appeal has been struck out retains the right to seek extension of time to lodge a competent appeal, but the proper course was an application for leave to file fresh Notice and Record of Appeal, not an order deeming service of the defunct record. The application was found incompetent and struck out with costs to the respondent.

Key legal issues

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01

Whether time to serve a struck-out Notice and Record of Appeal can be enlarged

Holding

No. Once struck out, the record of appeal no longer exists; extension of time cannot revive it. The applicant should have sought leave to file fresh Notice and Record of Appeal.

Reasoning

The court distinguished between extending time for existing pleadings and reviving pleadings already struck out. Relying on Robinson v Muthami and Ngoni Matengo v Osman, an appellant whose appeal is struck out retains the right to seek extension of time to lodge a competent appeal, but that requires a fresh application for leave, not an order deeming service of the defunct record.

p. 3

Legal principles established

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  • An appellant whose appeal has been struck out for incompetence may move the court for extension of time to lodge a competent appeal, but cannot revive the struck-out record; the proper course is a fresh application for leave to file fresh Notice and Record of Appeal.
  • The effect of striking out is to do away with the pleading; it ceases to exist and cannot be revived by an extension of time.

Court orders

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  1. 1.The application dated 10th March 2022 struck out with costs to the respondent

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A & 3B
  • Court of Appeal RulesRule 4
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (6)

  • Phillip Chepmwolo & Another v. Augustine Kubede
    (1982-88) KLR 103

    Mistake of counsel should not be visited on the client

  • Belinda Muras & 6 Others v. Amos Wainaina
    (1978) KLR

    A mistake is a mistake, no less pardonable because committed by senior counsel

  • Nicholas Kiptoo Arap Korir Salat V. Independent Electoral and Boundaries Commission & 6 Others
    (2013) eKLR

    Substantive justice overrides technicality; courts should sustain rather than strike out pleadings on technical grounds

  • Robinson & Others v Muthami
    Civil Application No NAI 187 of 1997 (78/97 UR)

    An appellant whose appeal is struck out may move for extension of time to lodge a competent appeal

  • Ngoni Matengo Co-operative Marketing Union Ltd v Osman
    [1959] E.A. 577

    Filing a fresh notice of appeal after a record is struck out is abundant caution; intention to appeal is not withdrawn

  • Elizabeth Kamene Ndolo v George Matata Ndolo
    Civil Application No NAI 104 of 1995 (unreported)

    Cited within Robinson v Muthami on extension of time after strike-out

On appeal from
Environment and Land Court at Malindi
ELC Case No. 52 of 2010
Jurisdiction invoked
Sections 3A & 3B of the Appellate Jurisdiction Act; Rule 4 of the Court of Appeal Rules; Articles 50 and 159(2)(d) of the Constitution

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, "Hussein Abdalla Said v Yawa Chome Shume", Case Analysis (2022). Civil Appeal (Application) 152 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1063/eng@2022-10-07

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