Ndirangu & 3 others v Isosho (Civil Application E038 of 2021) [2023] KECA 433 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a bid to strike out an appeal record, confirming that appeal deadlines only start running after the notice of appeal is lodged.
What this practically means
#Executive summary
#Key legal issues
#Computation of time for instituting an appeal where proceedings are applied for before the notice of appeal is lodged
Time ran from lodgement of the notice of appeal (August 2, 2018); the period between the letter requesting proceedings (July 24, 2018) and lodgement of the notice fell within the grace period for lodging the notice and is not counted
Rule 84(1) prescribes sixty days from lodgement of the notice of appeal, subject to the proviso excluding certified preparation time. Because the request for proceedings was made within the grace period for lodging the notice of appeal and was copied to the Applicants' advocates, the period before lodgement of the notice cannot be counted against the Respondent in computing time.
When the excluded period ends
The excluded period runs until the proceedings are collected/delivered, not merely until they are ready; the appeal filed on March 5, 2020, about 48 days after collection on January 16, 2020, was within time
There was no evidence the Respondent was notified the proceedings were ready earlier than January 16, 2020, when they were collected. The Applicants did not contend the request letter was not served as required by Rule 84(2), so the Respondent retained the benefit of the proviso. Counting from collection, the appeal was instituted within 60 days.
Timeliness of the application to strike out under the proviso to Rule 86
The application, filed April 30, 2021, long after the Record of Appeal was filed on March 5, 2020, was out of time and the Applicants were barred from challenging the appeal's competency
The proviso to Rule 86 requires such an application within thirty days of service of the notice or record of appeal. There was no averment in the supporting affidavit as to when the Record was served; the contention that service occurred on March 5, 2020 was raised only in submissions and, if true, would itself bar the application.
Legal principles established
#- The 60-day period for instituting an appeal begins to run only after lodgement of the notice of appeal, and time taken by an appellant before applying for proceedings within the grace period for lodging the notice cannot count against the appellant
- The excluded period under the proviso to Rule 84(1) includes not only the time taken to type proceedings but also the time until the proceedings were delivered or the party was notified they were ready for collection
- An application to strike out a notice or record of appeal must be brought before the expiry of thirty days after service of the notice or record of appeal under the proviso to Rule 86
- Factual matters, such as the date of service of a Record of Appeal, must be averred to in a supporting affidavit and cannot be raised for the first time in submissions
Court orders
#- 1.The Notice of Motion dated November 12, 2020 is dismissed
- 2.No order as to costs, the Respondent having not responded to the application
- Jurisdiction invoked
- Rules 82(1) and (2), 83 and 84 of the Court of Appeal Rules (as renumbered Rules 84, 85 and 86 of the Court of Appeal Rules, 2022)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndirangu & 3 others v Isosho (Civil Application E038 of 2021) [2023] KECA 433 (KLR)", Case Analysis (2023). Malindi Civil Appeal No 31 of 2020 (Notice of Motion dated November 12, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/433/eng@2023-04-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.