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Court of AppealDismissedCivil Appeal (Application) E472 of 2022· [2022] KECA 1211 (KLR)

Kathuri v Munyoki

Court of Appeal
4 November 2022
KLK. I. Laibuta
1,107 words in judgment
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The bottom line

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The Court of Appeal dismissed an appeal attempt because the notice of appeal was filed too late, confirming that step cannot be skipped or fixed later.

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 at Nairobi by Laibuta, JA, on a notice of motion dated July 22, 2022 under rule 4 of the Court of Appeal Rules, in which Boniface Kinyua Kathuri sought extension of time to file and serve his memorandum of appeal against the judgment and decree of the High Court at Kitui (R. K. Limo, J) delivered on October 19, 2020. The applicant attributed the delay to an inability to raise funds to instruct his advocates and invoked access to justice. The respondent, though served, filed no reply. The court noted that the judgment was delivered on October 19, 2020 but the notice of appeal was only lodged on November 5, 2021, more than a year later, and no extension of time for the notice was sought. Applying the Supreme Court's decision in University of Eldoret v Sitienei and Apungu Arthur Kibira v IEBC (drawing on Salat), the court held that a notice of appeal is a primary document and a jurisdictional pre-requisite signifying intention to appeal. Since no notice of appeal was properly on record, the court had no jurisdiction to entertain the rule 4 application. It further held that the defect was not a mere technicality curable under article 159(2)(d), which is not a panacea for all procedural ills, notwithstanding sections 3A and 3B of the Appellate Jurisdiction Act. The application was dismissed for want of jurisdiction, with no costs order recorded. The decision binds subordinate courts and the High Court on the jurisdictional pre-requisite of a timely or leave-extended notice of appeal.

Key legal issues

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01

Whether an application for extension of time to file a memorandum of appeal can be entertained where no notice of appeal is on record

Holding

It cannot; the notice of appeal is a jurisdictional pre-requisite and the court's hands are tied where none is properly on record.

Reasoning

The applicant filed his notice of appeal over a year after judgment without seeking extension of time for it. Citing Supreme Court authority, the court held that filing a notice of appeal signifies intention to appeal and is a jurisdictional pre-requisite. Without a valid notice, the court lacks jurisdiction to grant rule 4 relief, and article 159(2)(d) cannot cure the defect.

p. 2
02

Whether article 159(2)(d) and the overriding objective can cure the absence of a notice of appeal

Holding

No; article 159(2)(d) is not a panacea for all procedural ills and does not cure the jurisdictional defect.

Reasoning

The court acknowledged the constitutional guarantee of access to justice under article 48 and the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act, but held, following election-petition and other authorities, that the jurisdictional pre-requisite of a notice of appeal is not a curable technicality.

p. 2

Legal principles established

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  • A notice of appeal filed within the prescribed period (or out of time with leave) is a jurisdictional pre-requisite; without it the Court of Appeal has no jurisdiction to entertain an application for extension of time to file a memorandum of appeal.
  • The absence of a valid notice of appeal is not a mere technicality curable under article 159(2)(d) of the Constitution.

Court orders

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  1. 1.The applicant's notice of motion dated July 22, 2022 dismissed for want of jurisdiction

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 77(2)
  • Court of Appeal Rulesrule 79(1)
  • Constitution of Kenya, 2010article 48
  • Constitution of Kenya, 2010article 159(2)(d)
  • Appellate Jurisdiction Actsections 3A and 3B

Cases cited (8)

  • University of Eldoret and another vs Hosea Sitienei and three others
    [2020] eKLR

    Filing a notice of appeal signifies intention to appeal and is not premised on any condition to be fulfilled by the appellant.

  • Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission and 7 others
    [2014] eKLR

    Authority underlying the holding that a notice of appeal is a primary document and a jurisdictional pre-requisite.

  • Apungu Arthur Kibira vs Independent Electoral and Boundaries Commission and 2 others
    [2018] eKLR

    A notice of appeal is a primary document to be filed outright; it is a jurisdictional pre-requisite.

  • Jaldesa Tuke Dabelo vs IEBC & Another
    [2015] eKLR

    Article 159(2)(d) is not a panacea for all procedural ills.

  • Raila Odinga and 5 Others vs IEBC & 3 Others
    [2013] eKLR

    Article 159(2)(d) is not a panacea for all procedural ills.

  • Lemanken Arata vs Harum Meita Mei Lempaka & 2 Others
    [2014] eKLR

    Article 159(2)(d) is not a panacea for all procedural ills.

  • Patricia Cherotich Sawe vs IEBC & 4 Others
    [2015] eKLR

    Article 159(2)(d) is not a panacea for all procedural ills.

  • City Chemist (NBI) Mohamed Kasabuli suing for and on behalf of the Estate of Halima Wamukoya Kasabuli vs Orient Commercial Bank Limited
    Civil Appeal No Nai 302 of 2008 (UR No 199 of 2008) (Unreported)

    Sections 3A and 3B of the Appellate Jurisdiction Act confer powers to dispense justice with greater latitude.

On appeal from
High Court of Kenya at Kitui
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules; Appellate Jurisdiction Act (Cap. 9)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kathuri v Munyoki", Case Analysis (2022). Civil Appeal (Application) E472 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1211/eng@2022-11-04

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