Mulama v Ethics & Anti-Corruption Commission (Civil Application E186 of 2021) [2023] KECA 582 (KLR)
The bottom line
#Kenya's Court of Appeal struck out the Teachers Service Commission's entire appeal because it served the appeal record nearly five months late instead of within seven days.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the notice of appeal
The notice of appeal was timely filed; the email evidence and registry receipt proved lodgment on February 25, 2021, within the 14 days allowed by rule 77(2), notwithstanding the March 19, 2021 date endorsed by the Deputy Registrar.
The court examined the email trail and the registry receipt, which showed the notice and letter bespeaking proceedings were lodged by email on February 25, 2021, assessed on February 26, 2021, and fees paid that day via M-pesa. The date on the face of the notice merely reflected when it was executed by the Deputy Registrar and was not determinative of the lodgment date.
Threshold under rule 84 for the strike-out application
The applicant's application filed on June 15, 2022 was within 30 days of service of the record of appeal on May 26, 2022, and therefore properly before the court.
Rule 84 requires an application to strike out a notice or record of appeal to be filed within 30 days of service. Service occurred on May 26, 2022, and the motion was dated and filed June 15, 2022, well within the window, so the threshold objection to the application failed.
Service of the memorandum and record of appeal out of time
The record of appeal, served nearly five months after lodgment, breached the mandatory seven-day service requirement in rule 92(1) and was liable to be struck out under rule 86(b); consequently the notice of appeal was deemed withdrawn under rule 85(1).
Rule 92(1) mandates service of the record before or within seven days of lodgment. Service occurred nearly five months late, and the respondent's own rule 4 application for extension of time conceded non-compliance. The court regarded that application as a knee-jerk response evidencing indolence, and the respondent's technical difficulties and bereavement did not excuse the breach. The mandatory language of the rule left no discretion to save the record.
Legal principles established
#- Rule 92(1) of the Court of Appeal Rules is mandatory: an appellant must serve the memorandum and record of appeal on each compliant respondent before or within seven days after lodgment, failing which the record is liable to be struck out under rule 86(b) and the notice of appeal deemed withdrawn under rule 85(1).
- Where a notice of appeal is lodged electronically, the date of lodgment is the date of transmission and payment as evidenced by the email trail and registry receipt, not the date later endorsed on the face of the notice by the Deputy Registrar.
- An application to strike out a notice or record of appeal must itself be filed within 30 days of service, per rule 84.
Court orders
#- 1.The record of appeal filed on October 12, 2021 is struck out
- 2.The notice of appeal filed on February 25, 2021 is deemed withdrawn pursuant to rule 85(1)
- 3.Costs of the application awarded to the applicant
- On appeal from
- High Court
- Not stated in judgment
- Jurisdiction invoked
- Court of Appeal Rules (rules 77, 81, 84, 85(1), 86(b), 92(1), 4)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ladha & another v Ladha) & 3 others (Civil Appeal (Application) E020 of 2023) [2024] KECA 643 (KLR)[2024] KECA 643 (KLR)7 Jun 2024followed
Cite this brief
#Cite this brief
Caselaw, "Mulama v Ethics & Anti-Corruption Commission (Civil Application E186 of 2021) [2023] KECA 582 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/582/eng@2023-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.