Leisure Lodges Limited v Nassoro Abdalla Mwachibulo & 165 Others
The bottom line
#Kenya's Court of Appeal refused to strike out a late record of appeal, letting the appellants rely on earlier court directions despite missing the usual 60-day deadline.
What this practically means
#Executive summary
#Key legal issues
#Whether the record of appeal filed on January 10, 2020 was filed out of time without leave
Although the record was filed beyond the 60-day period and without a certificate of delay, the respondents were entitled to the benefit of the orders of November 14, 2019 directing filing within 45 days, given their full participation in that application.
The court accepted that the record was filed way beyond the 60 days prescribed under Rule 86 and that no certificate of delay was annexed. However, it perused the ruling of November 14, 2019 in Civil Application No 54 of 2019, which directed the intended appeal to be filed within 45 days on pain of discharge of the orders granted. Although that application was for stay of execution and proceedings, not extension of time, and was not consolidated as the respondents urged, the respondents' full participation at the hearing entitled them to the benefit of doubt and of the orders made in that ruling.
Whether the notice of appeal should be deemed withdrawn or struck out
The notice of appeal was filed and served timeously on May 30, 2019 and there was no contention to the contrary; the application to strike it out failed.
The court found no contention that the notice of appeal was not filed and served timeously. The complaint centred on the late record of appeal, which the court resolved in the respondents' favour by reference to the November 14, 2019 ruling. The ancillary complaints about excluded parties and appeals filed for parties without notices of appeal were left to be taken up at the hearing of the appeal, with leave granted under Rule 107.
Whether the applicant could raise the competence of the appeal (excluded parties, appellants without notices of appeal)
Those issues are matters that can be taken up on appeal; the applicant was granted leave under Rule 107 to argue them at the hearing of the appeal.
The court held that complaints about leaving out necessary parties and filing the appeal for parties who had not filed notices of appeal were matters for the hearing of the appeal itself. Because Rule 107(a) bars arguing grounds not specified in the memorandum of appeal without leave, the court expressly granted the applicant leave to raise the competence issues at the hearing, if need be.
Legal principles established
#- Whether or not an appeal is filed on time goes to the jurisdiction of the court.
- The 60-day timeline under Rule 86 is strict, but a certificate of delay excludes time taken to prepare proceedings where proceedings were bespoken within thirty days.
- A party may not, without leave of the Court, argue grounds at the hearing of an appeal other than those specified in the memorandum of appeal or notice of cross-appeal.
Court orders
#- 1.The application dated February 18, 2020 is dismissed as unmerited
- 2.The applicant is granted leave to argue the issues it raised in regard to the competence of the appeal at the hearing of the appeal
- 3.The costs of the application shall be costs in the appeal
- On appeal from
- High Court at Mombasa
- Constitutional Petition No. 21 of 2010
- Jurisdiction invoked
- Appellate Jurisdiction Act; Rules 84, 85 and 86 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Leisure Lodges Limited v Nassoro Abdalla Mwachibulo & 165 Others", Case Analysis (2022). Civil Appeal (Application) 4 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1122/eng@2022-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.