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Court of AppealStruck OutNotice of Motion dated July 25, 2022 (application to strike out Notice of Appeal dated February 27, 2019)· [2023] KECA 358 (KLR)

Wangari Wanjau v The County Government of Uasin Gishu

Court of Appeal of Kenya
31 March 2023
801 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan notice of appeal expires after 60 days, but you must challenge it within 30 days of service or your striking-out application fails too.

What this practically means

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Executive summary

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By a Notice of Motion dated July 25, 2022, Wangari Wanjau asked the Court of Appeal (Nakuru) to strike out a Notice of Appeal dated February 27, 2019 and filed February 28, 2019 by the County Government of Uasin Gishu, on the ground that no appeal had been lodged within 60 days. The respondent, through its County Attorney S K Lel, acknowledged that a Certificate of Delay had been issued by the Deputy Registrar of the Environment and Land Court on April 7, 2022, and attributed its failure to lodge the appeal in time to the Covid-19 pandemic, the restructuring of government after the August 2022 general elections, and the failure of the National Government to disburse funds. The court, per a full bench of Sicha, Ochieng and Achode JJA, adopted its holding in Mae Properties Ltd v Joseph Kibe that a notice of appeal dies a natural death after 60 days unless the appeal is lodged within that period (as computed with excluded certified time under the proviso to Rule 82(1)) or time is extended under Rule 4. On the merits it found all three explanations wanting: the pandemic could not explain delay after April 7, 2022; the elections occurred more than four months after the Certificate of Delay; and no nexus was shown between funding failures and the delay. However, the respondent pointed out - and the court accepted - that an application to strike out a notice of appeal must be brought within 30 days of service of the notice. The applicant's application, filed over three years later, was therefore incompetent and was struck out, with no order as to costs. The notice of appeal itself was not struck out.

Key legal issues

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01

Lifespan of a notice of appeal under Rule 82(1)

Holding

Adopting Mae Properties, a notice of appeal dies after 60 days unless the appeal is lodged within that time or time is extended under Rule 4.

Reasoning

The court reaffirmed its earlier decision in Mae Properties Ltd v Joseph Kibe, holding that failure to lodge the appeal within 60 days has the prescribed consequence that the notice is deemed withdrawn, and it may be revived only by lodgment within the excluded-time computation or by an extension order under Rule 4.

p. 2
02

Sufficiency of the respondent's explanations for delay

Holding

None of the proffered explanations (Covid-19, post-election restructuring, non-disbursement of funds) accounted for the delay after the Certificate of Delay of April 7, 2022.

Reasoning

The court found the pandemic did not explain delays after April 7, 2022 when the record was ready; the August 9, 2022 elections came more than four months after the Certificate of Delay, so restructuring could not explain the delay; and no nexus was established between alleged non-disbursement of funds and the failure to file the appeal.

p. 2
03

Timeliness of an application to strike out a notice of appeal

Holding

Such an application must be made within 30 days from service of the notice of appeal; the applicant's application, filed more than three years after the notice, was incompetent and was struck out.

Reasoning

The court held that although the respondent lacked an answer on the merits, the applicant was herself bound by the 30-day time limit for mounting a striking-out application, and the failure to comply rendered the application incompetent, with the consequence that it was struck out.

p. 3

Legal principles established

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  • A notice of appeal lapses 60 days after filing unless the appeal is lodged within that period (or such longer time as is certified for preparation of the record under the proviso to Rule 82(1)) or time is extended by a single Judge under Rule 4.
  • An application to strike out a notice of appeal must be made within 30 days from the date the notice of appeal was served; an application filed outside that period is incompetent and will be struck out.
  • Periods certified by the Deputy Registrar as required for preparation of the record of proceedings are excluded in computing the 60-day period under the proviso to Rule 82(1).

Court orders

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  1. 1.The application to strike out the notice of appeal, having been filed outside the 30-day time limit, is struck out as incompetent
  2. 2.No order as to costs
On appeal from
Environment and Land Court
Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal over notices of appeal and applications relating thereto under the Court of Appeal Rules (Rule 82(1) and the rule requiring striking-out applications within 30 days of service of the 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, "Wangari Wanjau v The County Government of Uasin Gishu", Case Analysis (2023). Notice of Motion dated July 25, 2022 (application to strike out Notice of Appeal dated February 27, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/358/eng@2023-03-31

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