FNM v EMP (Civil Application 49 of 2020) [2023] KECA 307 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a Notice of Appeal filed and served late, confirming that Rule 86's deadlines are mandatory.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the striking-out application under Rule 86
Service on June 6 (email) and June 16 (in person), with the application filed June 29, 2020, fell within the thirty-day period, so the court was properly seized.
Rule 86's proviso bars striking-out applications brought after the expiry of thirty days from service of the notice of appeal or record of appeal. Counting from service upon the applicant, the application filed on June 29, 2020 was twenty-nine days after service, comfortably within the statutory window, conferring jurisdiction on the court.
Consequences of late service of a Notice of Appeal
The respondent served the Notice of Appeal out of time (on the ninth day), and the delay could not be excused in a striking-out application.
The court applied Daniel Nkirimpa Monirei v Sayialel ole Koilel on the purpose of service: to alert parties that the matter is escalating so they can prepare. Failure to serve within the prescribed time gives a party false belief that the matter has concluded and occasions prejudice. Submissions on length of delay, attempts to redress, and mistakes of counsel belong to extension-of-time applications, not striking-out applications.
Binding nature of procedural timelines
Procedural rules are mandatory and must be adhered to; blatant flouting cannot be excused by appeals to substantive justice.
Although the respondent invoked Article 159(2)(d) of the Constitution and argued the delay of nine days was not inordinate and that mistakes of counsel should not be visited on a litigant, the court held that Rule 86 is couched in mandatory terms and that adherence to procedural timelines is necessary for the proper dispensation of justice. The notice was therefore struck out.
Legal principles established
#- Rule 86 is mandatory: a Notice of Appeal filed and served out of time without leave is liable to be struck out, and explanations relevant to extension of time are no answer to a striking-out application.
- An applicant under Rule 86 must file the striking-out application within thirty days of service of the notice of appeal or record of appeal to be properly before the Court.
Court orders
#- 1.The respondent's Notice of Appeal dated and filed May 28, 2020 is struck out as fatally defective
- 2.The respondent to pay the costs of the application
- On appeal from
- High Court of Kenya
- Divorce suit (Originating Summons) - exact number not stated
- Jurisdiction invoked
- Rules 79 and 86 of the Court of Appeal Rules, 2010 (now Rules 79 and 86 of the Court of Appeal Rules, 2022); Sections 3A and 3B of the Appellate Jurisdiction Act invoked by the applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "FNM v EMP (Civil Application 49 of 2020) [2023] KECA 307 (KLR)", Case Analysis (2023). Civil Application (struck-out application under Rule 86 of the Court of Appeal Rules, 2022) arising from an intended appeal against a judgment delivered May 5, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/307/eng@2023-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.