Mercy Cassandra M’mboga v Said Ahmed Mahmud
The bottom line
#Kenya's Court of Appeal struck out an appeal notice because it wasn't properly served within seven days, though a pending extension application may revive it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Notice of Appeal was served within the 7-day period prescribed by Rule 79
The Notice of Appeal was not served within 7 days from the date of filing; the alleged constructive service through an annexure to a stay application was unsubstantiated because the supporting affidavit was not placed before the Court.
The Notice of Appeal was filed on October 5, 2020, within time. The Appellant alleged constructive service on October 19, 2020, through an annexure to a stay application, but that application and the alleged supporting affidavit were not placed before the Court. Without an affidavit or proof of the mode of service, the Court could not find service; the questions of constructive service and reasonable excuse were left to the single Judge hearing the extension application.
Whether the Notice of Appeal should be struck out for failure to serve within the prescribed time
The Notice of Appeal was struck out, but the striking out was suspended pending the determination of the pending application for extension of time to serve.
Having found that the Notice of Appeal was not served within 7 days as required by Rule 79, and noting the strict timelines confirmed in the authorities, the Court struck out the Notice of Appeal. However, because an application for extension of time to serve dated October 19, 2020 was pending before a single Judge, the Court suspended the striking-out order rather than determine the extension issues itself.
Legal principles established
#- An intended appellant must serve the notice of appeal on all persons directly affected by the appeal, before or within seven days after lodging the notice of appeal.
- Service of a notice of appeal must be actual, deliberate and not accidental; attaching a copy as an annexure to another application does not, without evidence, constitute the service required under Rule 79.
- An application to strike out a notice of appeal must be brought within 30 days from the date of service with the Notice of Appeal to be competent.
Court orders
#- 1.The Notice of Appeal dated October 5, 2020 be and is hereby struck out
- 2.The order striking out the Notice of Appeal is suspended pending the outcome of the pending application for extension of time dated October 19, 2020
- 3.The Respondent will have the costs of this application in any event
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Court of Appeal Rules 2010 (Rules 42, 75(1)&(2), 77, 82, 83 and 84) and Court of Appeal Rules 2022 (Rules 44, 76(1)&(2), 79, 84, 85 and 86) - procedural jurisdiction over notices of appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mercy Cassandra M’mboga v Said Ahmed Mahmud", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/344/eng@2023-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.