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Court of AppealDismissedMalindi Civil Appeal No 31 of 2020 (Notice of Motion dated November 12, 2020)· [2023] KECA 433 (KLR)

Ndirangu & 3 others v Isosho (Civil Application E038 of 2021) [2023] KECA 433 (KLR)

Court of Appeal of Kenya
14 April 2023
1,468 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Applicants, by Notice of Motion dated November 12, 2020 under Rules 82(1) and (2), 83 and 84 (now 84, 85 and 86) of the Court of Appeal Rules, sought to strike out the Respondent's Record of Appeal in Malindi Civil Appeal No 31 of 2020 filed on March 5, 2020, contending it was filed outside the statutory sixty-day period. They relied on a Certificate of Delay issued January 23, 2020 certifying 93 days for preparation of proceedings ending October 25, 2019, and argued the Record, filed over three months later, was out of time, citing Masoud, Tropicana Hotels and Kiruja Kithinji. The Respondent filed neither a replying affidavit nor submissions. The Court of Appeal (Kairu, Nyamweya and Odunga, JJA) dismissed the application. It held that time begins to run only on lodgement of the notice of appeal (August 2, 2018); that the period covered by the grace period for lodging the notice is not counted; and that the excluded period under the proviso to Rule 84(1) extends to delivery or notification that proceedings are ready, not merely their completion. Lacking evidence of earlier notification, the Court counted from collection on January 16, 2020, making the appeal filed on March 5, 2020, about 48 days later, within time. Independently, the application, filed April 30, 2021, contravened the proviso to Rule 86 requiring such applications within thirty days of service, and the service date relied on was raised only in submissions, not averred in the affidavit. The motion was dismissed with no order as to costs.

Key legal issues

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01

Computation of time for instituting an appeal where proceedings are applied for before the notice of appeal is lodged

Holding

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

Reasoning

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.

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02

When the excluded period ends

Holding

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

Reasoning

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.

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03

Timeliness of the application to strike out under the proviso to Rule 86

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated November 12, 2020 is dismissed
  2. 2.No order as to costs, the Respondent having not responded to the application

Authorities

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Legislation

  • Court of Appeal Rules (formerly applicable)Rule 82(1) and (2)
  • Court of Appeal Rules (formerly applicable)Rule 83
  • Court of Appeal Rules (formerly applicable)Rule 84
  • Court of Appeal Rules, 2022Rule 84(1), (2) and (3) and proviso
  • Court of Appeal Rules, 2022Rule 85
  • Court of Appeal Rules, 2022Rule 86 and proviso
  • Court of Appeal RulesRule 83(1)
  • Court of Appeal Rules, 2022Rule 118

Cases cited (3)

  • Munir Abubakar Masoud (As member of Tawheed Muslim Association) v Ali Abdalla Salim & another
    [2018] eKLR
  • Tropicana Hotels Limited v SBM Bank (Kenya) Limited (formerly known as Fidelity Commercial Bank Ltd
    [2020] eKLR
  • Patrick Kiruja Kithinji vs Victor Mugira Marete
    [2015] eKLR
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

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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, "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.