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Court of AppealDismissedCivil Appeal (Application) 4 of 2020· [2022] KECA 1122 (KLR)

Leisure Lodges Limited v Nassoro Abdalla Mwachibulo & 165 Others

Court of Appeal
21 October 2022
2,499 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Court of Appeal at Mombasa (Kairu, Nyamweya and Lesit, JJA) determined an application by Leisure Lodges Limited to strike out the respondents' notice and record of appeal filed on January 10, 2020 against the judgment of a three-judge High Court bench (Ogola, Chepkwony and Thande, JJ) delivered on May 23, 2019 in Constitutional Petition No. 21 of 2010, which had upheld the applicant's title to land at Diani Beach and dismissed the respondents' cross-petition claiming the land for resettlement of squatters. The applicant argued that the record of appeal was filed beyond the 60 days prescribed under Rule 86 of the Court of Appeal Rules, without a certificate of delay, and that the appeal excluded necessary parties and was filed for parties who had not lodged notices of appeal. The respondents relied on a ruling of this Court dated November 14, 2019 in Civil Application No 54 of 2019, which granted stay of execution and directed the intended appeal to be filed within 45 days. The court accepted that the record was filed beyond 60 days without a certificate of delay, and noted that the November 14, 2019 application was for stay, not extension of time, and was not consolidated as the respondents urged. Nonetheless, given the respondents' full participation in that application, the court gave them the benefit of doubt and the benefit of the orders made in it. Complaints about the competence of the appeal were left to the hearing, with leave granted under Rule 107. The application was dismissed, with costs in the appeal.

Key legal issues

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01

Whether the record of appeal filed on January 10, 2020 was filed out of time without leave

Holding

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.

Reasoning

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.

p. 4
02

Whether the notice of appeal should be deemed withdrawn or struck out

Holding

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.

Reasoning

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.

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Whether the applicant could raise the competence of the appeal (excluded parties, appellants without notices of appeal)

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application dated February 18, 2020 is dismissed as unmerited
  2. 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. 3.The costs of the application shall be costs in the appeal

Authorities

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Legislation

  • Appellate Jurisdiction ActRule 82, 83 and 84 (now Rules 84, 85 and 86)
  • Court of Appeal RulesRule 86
  • Court of Appeal RulesRule 107(a)
  • Court of Appeal RulesRule 118
  • The old Constitution of KenyaSections 22 and 165(3)

Cases cited (4)

  • Patrick Kiruja Kithinji v. Victor Mugira Marete
    (2015) eKLR

    Whether or not an appeal is filed on time goes to the jurisdiction of the court

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

    Reiterating the intent and purport of Rule 86 and the effect of a certificate of delay

  • John Mutai, Mwangi & 26 Others v Mwenja Ngure & 4 Others
    [2016] eKLR

    Position on the strict 60-day timeline under Rule 86, as reiterated in Wathuku

  • AG and Land Registrar, Kwale v Leisure Lodges & 761 others, Civil Application No 54 of 2019

    Ruling of November 14, 2019 granting stay and directing the intended appeal to be filed within 45 days

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

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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, "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.