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Court of AppealPartially Allowed· [2023] KECA 582 (KLR)

Mulama v Ethics & Anti-Corruption Commission (Civil Application E186 of 2021) [2023] KECA 582 (KLR)

Court of Appeal of Kenya
12 May 2023
1,162 words in judgment
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The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Kiage, Tuiyott and Muchelule, JJA) on a notice of motion dated June 15, 2022 by Samuel Ongonga Mulama seeking to strike out the Teachers Service Commission's notice of appeal (filed February 25, 2021) and record of appeal (filed October 12, 2021) following a High Court judgment delivered February 12, 2021. The respondent argued that the notice of appeal was lodged by email on February 25, 2021, within the 14 days prescribed by rule 77(2), the March 19, 2021 date on its face being merely the Deputy Registrar's execution date. The court accepted this, finding the email trail and registry receipt proved timely lodgment. It also found the applicant's motion met the rule 84 threshold, having been filed within 30 days of service of the record on May 26, 2022. On the substantive issue, the court held that rule 92(1), which requires service of the memorandum and record of appeal within seven days of lodgment, is mandatory; the record was served nearly five months late, and the respondent's own rule 4 extension application - filed as a knee-jerk reaction and evidencing indolence - conceded the breach. The respondent's technical difficulties and its clerk's bereavement did not excuse the failure. Reading rule 92(1) with rule 86(b), the court struck out the record of appeal, deemed the notice of appeal withdrawn under rule 85(1), and awarded costs to the applicant, reiterating the timeliness principles in Martin Kabaya v David Mungania Kiambi. The application was entirely successful; there was no decision below to disturb.

Key legal issues

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01

Timeliness of the notice of appeal

Holding

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.

Reasoning

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.

p. 2
02

Threshold under rule 84 for the strike-out application

Holding

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.

Reasoning

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.

p. 2
03

Service of the memorandum and record of appeal out of time

Holding

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).

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The record of appeal filed on October 12, 2021 is struck out
  2. 2.The notice of appeal filed on February 25, 2021 is deemed withdrawn pursuant to rule 85(1)
  3. 3.Costs of the application awarded to the applicant

Authorities

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Legislation

  • Court of Appeal Rulesrule 77(2)
  • Court of Appeal Rulesrule 81(1)
  • Court of Appeal Rulesrule 84
  • Court of Appeal Rulesrule 85(1)
  • Court of Appeal Rulesrule 86(b)
  • Court of Appeal Rulesrule 92(1)
  • Court of Appeal Rulesrule 4

Cases cited (1)

  • Martin Kabaya Vs. David Mungania Kiambi
    Nyeri Civil Application 12 of 2015
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.