Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealStruck OutCivil Appeal (Application) E128 & E130 of 2021 (Consolidated)

Meru County Assembly & 2 others v Muriuki & 5 others

Court of Appeal
18 November 2022
1,767 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck out two appeals because the appellants served documents late and never asked for extra time.

What this practically means

#

Executive summary

#
This ruling of the Court of Appeal at Nyeri (delivered at Nairobi) determines two consolidated applications by Kenneth Muriuki seeking to strike out Civil Appeals Nos. E128 and E130 of 2021, brought by the Meru County Assembly, Jacob Karari and the Meru County Assembly Service Board against the judgment of the High Court at Meru (P.J. Otieno, J.) of 22nd October 2021 in Meru Court Petition No. 4 of 2021. The applicant contended that the notice of appeal lodged on 27th October 2021 was never served on him, and that the record of appeal filed on 30th November 2021 was served on 9th December 2021, both outside the seven-day period prescribed by rule 90(1) of the Court of Appeal Rules, 2010, with no extension of time sought. The Court first confirmed that the applications fell within the 30-day window in the proviso to rule 84, treating inclusion of the notice in the record as indirect service. It then applied its earlier decision in Daniel Nkirimpa Monirel on the purpose of service of a notice of appeal, held that both the notice and the record were served out of time, and found that the appellants' failure to seek extension of time rendered the appeals incompetent. The applications were allowed; the notices and records of appeal were struck out with costs to the applicant, and the Court declined to determine the merits of the appeals. The decision binds subordinate courts and the High Court on the consequences of unregularised late service of appellate process.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applications to strike out were filed within the 30-day period prescribed by the proviso to rule 84 of the Court of Appeal Rules, 2010
  2. 2.Whether the appellants failed to serve the notice of appeal and record of appeal on the applicant within the prescribed time
  3. 3.Whether failure to serve out of time, without seeking extension of time, renders the appeals incompetent and liable to be struck out

Key legal issues

#
01

Timeliness of the strike-out applications under rule 84

Holding

The applications were filed within the 30-day period, reckoning from the date of indirect service of the notice of appeal and filing of the record of appeal.

Reasoning

The notice of appeal was indirectly served when included in the record filed on 30th November 2021; the applications filed on 22nd December 2021 fell within 30 days of that date and of the filing of the record, satisfying the proviso to rule 84.

02

Non-compliance with rule 90(1) on service within seven days

Holding

The notice of appeal and record of appeal were served out of the prescribed seven-day period, and no extension of time was sought, rendering the appeals incompetent.

Reasoning

Rule 90(1) requires service of the memorandum and record of appeal within seven days of lodging. Service occurred on 30th November and 9th December 2021 respectively, both outside the period. The appellants never sought leave to extend time, so the non-compliance stood unregularised and the appeals were liable to be struck out.

p. 4
03

Purpose of service of a notice of appeal

Holding

Service of the notice of appeal alerts the respondent that the matter is escalating on appeal, enabling preparation; failure to serve occasions prejudice and should not be countenanced.

Reasoning

Adopting the reasoning in Daniel Nkirimpa Monirel, the Court emphasised that late or absent service gives a party the false belief that the matter is concluded, only to be ambushed by the record of appeal, which is prejudicial in a fair and just process.

p. 4

Legal principles established

#
  • Failure to serve a notice of appeal and record of appeal within the prescribed time, without obtaining an extension of time, renders an appeal incompetent and liable to be struck out.
  • An application under rule 84 to strike out a notice or record of appeal must be brought within 30 days of service of the notice or record, and service of the record containing the notice amounts to indirect service of the notice.

Court orders

#
  1. 1.The notices and records of appeal lodged on 30th November 2021 in respect of Civil Appeals Nos. E128 and E130 of 2021 are struck out with costs to the applicant
  2. 2.The Court does not proceed to determine the merits of the appeals

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court at Meru
Meru Court Petition No. 4 of 2021
Jurisdiction invoked
Rules 77(1) and (2), 84 and 90(1) of the Court of Appeal Rules, 2010 and Article 159(2)(c) of the Constitution of Kenya
Consolidated with
Civil Appeal (Application) E130 of 2021

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the notices and records of appeal lodged in this Court on 30th November 2021 in respect of Civil Appeals Nos. E128 and E130 of 2021 are hereby struck out with costs to the applicant.
p. 4Final orders - striking out of notices and records of appeal
Without making any attempt to regularise the late service by having time extended, it becomes clear that the 1st and 2nd appellant/respondents have not complied with the rules of this Court, which misstep would render the appeal incompetent and liable to be struck out.
p. 4Consequence of unregularised late service
That occasions prejudice to the ambushed party, and it is in our view a habit that should not be countenanced in any fair and just process.
p. 4Prejudice caused by failure to serve notice of appeal

Issues in the judgment

#
minor

Arithmetical slip in computing the 30-day period

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Meru County Assembly & 2 others v Muriuki & 5 others", Case Analysis (2022). Civil Appeal (Application) E128 & E130 of 2021 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1280/eng@2022-11-18

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