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Court of AppealAllowedCivil Application Nai 229 of 2014· [2022] KECA 1358 (KLR)

Mapema Holdings Limited v Gaitara & 2 others

Court of Appeal
2 December 2022
1,069 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal struck out an abandoned notice of appeal, confirming that strict appeal deadlines in Kenya must be met or the appeal dies.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Omondi, Laibuta and Gachoka, JJA) on a notice of motion dated September 3, 2014 brought by Mapema Holdings Limited under rule 84 of the Court of Appeal Rules, seeking to strike out a notice of appeal lodged on August 14, 2014 by the respondents against a ruling of Nyamweya, J. of August 1, 2014 in ELC Civil Suit No. 1400 of 2013. The applicant contended that the notice of appeal was not served within the prescribed period, being served only on August 26, 2014, and that no steps had been taken to institute the appeal. The respondents filed no replying affidavit and did not appear to explain the delay. The court first confirmed its own competency: the application, filed on September 3, 2014, fell within the 30-day period from service prescribed by the proviso to rule 84. On the merits, the court applied its established jurisprudence that the timelines in the Rules are mandatory and indispensable to the orderly administration of justice, that rule 83 deems a notice of appeal withdrawn where the appeal is not instituted within the stipulated time, and that rule 83 exists to enable the court to clean its record. Finding the notice of appeal served outside the stipulated time, no record of appeal filed, and no explanation offered, the court allowed the application with costs to the applicant. The ruling binds the High Court and subordinate tribunals on the mandatory character of the rule 84 time limit and the consequences of default under rule 83.

Key legal issues

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01

Competency of the striking-out application under rule 84

Holding

The application filed on September 3, 2014, within 30 days of service of the notice of appeal on August 26, 2014, was competently before the court.

Reasoning

Rule 84 bars striking-out applications brought after expiry of 30 days from the date of service of the notice or record of appeal. Since the notice was served on August 26, 2014 and the application was filed on September 3, 2014, it fell within the timelines contemplated by the rule as then applicable.

p. 2
02

Default in instituting the appeal

Holding

The notice of appeal was served outside the stipulated time, no record of appeal was filed, and no steps were taken to institute the appeal; the respondents offered no explanation.

Reasoning

Rule 83 deems a notice of appeal withdrawn where the appeal is not instituted within the stipulated time, enabling the court to clean its record. The respondents filed no replying affidavit and did not respond to the application to explain the delay, leaving the default unexplained.

03

Timeliness of compliance with the Court of Appeal Rules

Holding

The timelines in the Rules are indispensable and expressed in clear and unambiguous terms; where a record of appeal has not been filed, the notice of appeal ought to be deemed withdrawn.

Reasoning

The court relied on its prior decisions holding that the rules exist for orderly administration of justice and that strict timelines serve the constitutional, statutory and rule-based objective of timely dispensation of justice. Failure to comply with the mandatory proviso to rule 84 renders an application defective.

p. 2

Legal principles established

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  • An application to strike out a notice of appeal under rule 84 must be brought within 30 days from the date of service of the notice or record of appeal.
  • A party who lodges a notice of appeal but fails to institute the appeal within the stipulated time is deemed to have withdrawn the notice, and the party in default is liable to pay costs.
  • The power to strike out pleadings or an appeal is discretionary and draconian, to be exercised sparingly in clear cases.

Court orders

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  1. 1.The notice of motion dated September 3, 2014 is allowed
  2. 2.Costs of the application to the applicant

Authorities

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Legislation

  • Court of Appeal Rulesrule 84
  • Court of Appeal Rulesrule 83
  • Court of Appeal Rulesrule 82

Cases cited (10)

  • Wambua vs Wathome
    [1968] EA 40

    Power to strike out is draconian, exercised sparingly in clear cases.

  • Coast Projects Ltd vs MR Shah Construction
    [2004] KLR 119

    Striking out only where no reasonable cause of action or defence is disclosed.

  • Joyce Bochere Nyamweya vs Jemima Nyaboke Nyamweya & another
    [2016] eKLR

    Parties bound by mandatory proviso to rule 84; non-compliance renders application defective.

  • Salama Beach Hotel Limited & 4 others vs Kenayriri & Associates Advocates & 4 others
    [2016] eKLR

    Mandatory nature of proviso to rule 84.

  • Pickwell Properties Limited vs Kenya Commercial Bank Ltd
    [2016] eKLR

    Mandatory nature of proviso to rule 84.

  • Michael Mwalo vs Board of Trustees of National Security Fund
    [2014] eKLR

    Mandatory nature of proviso to rule 84.

  • John Mutai Mwangi & 26 others vs Mwenja Ngure & 4 others
    [2016] eKLR

    Rule 83 enables the court to clean out its record of notices of appeal not followed up within 60 days.

  • Charles Wanjohi Wathuku vs Githinji Ngure & another
    [2016] eKLR

    Timelines under rule 82 are strict and serve timely dispensation of justice.

  • Esther Anyango Ochieng vs Transmara Sugar Company
    [2020] eKLR

    Rules are expressed in clear and unambiguous terms and must be obeyed.

  • Mae Properties Limited vs Josephine Kibe & another
    [2017] eKLR

    Where a record of appeal has not been filed, the notice of appeal ought to be deemed withdrawn.

On appeal from
High Court of Kenya at Nairobi
ELC Civil Suit No. 1400 of 2013
Jurisdiction invoked
Rule 84 of the Court of Appeal Rules (2010) - application to strike out a notice of appeal

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, "Mapema Holdings Limited v Gaitara & 2 others", Case Analysis (2022). Civil Application Nai 229 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1358/eng@2022-12-02

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