Meru County Assembly & 2 others v Muriuki & 5 others
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the appellants failed to serve the notice of appeal and record of appeal on the applicant within the prescribed time
- 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
#Timeliness of the strike-out applications under rule 84
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.
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.
Non-compliance with rule 90(1) on service within seven days
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.
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.
Purpose of service of a notice of appeal
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.
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.
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.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.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.
- 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.
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.
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.
Issues in the judgment
#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.