Yusuf & another v Kikuvi & another (Civil Application E001 of 2022) [2023] KECA 689 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an entire appeal because the appellant missed filing and service deadlines with no excuse or extension application.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of service of the Notice of Appeal
The Notice of Appeal was lodged within 14 days but served on 20th June 2016, outside the seven days prescribed by Rule 77(1), and the Respondents did not contest this.
Rule 77(1) required service before or within seven days after lodging the notice of appeal. The court treated the timelines as mandatory, adopting the reasoning that late service gives the served party a false belief that the matter has ended and occasions prejudice. No application for extension of time or explanation for the delay was made.
Timeliness of filing and service of the Memorandum and Record of Appeal
The Memorandum and Record of Appeal were filed on 9th December 2021, some 62-68 months late even after excluding certified preparation time, without any application for extension of time, and were struck out.
Under Rule 82(1), the appeal had to be instituted within 60 days of the Notice of Appeal, with the proviso excluding only registrar-certified preparation time. Even factoring the certificate of delay, time expired around 17th October 2016. The 1st Respondent never sought leave, gave no reasons for the delay, and did not respond to the application.
Whether the court could strike out the Notice of Appeal despite the strike-out application being out of time as regards the notice
Yes - the court exercised its own-motion power under Rule 83 to deem the Notice of Appeal withdrawn, following Mae Properties Ltd v Joseph Kibe.
The proviso to Rule 84 required the strike-out application within 30 days of service; it was timely as to the Record of Appeal (served 10th January 2022) but out of time as to the Notice of Appeal (served 20th June 2016). Relying on Mae Properties, the court invoked the deemed-withdrawal provision (Rule 83 of the 2010 Rules, now Rule 85 of the 2022 Rules) where circumstances exist - here, unexplained delay and no application to extend time or regularize the record.
Legal principles established
#- Timelines in the Court of Appeal Rules for taking steps in an appeal are mandatory and command obedience; failure to serve a Notice of Appeal within the prescribed time occasions prejudice to the party ambushed.
- A notice of appeal that is not served within the time prescribed by Rule 77(1) may be deemed withdrawn by the court on its own motion under Rule 83, notwithstanding that an application to strike it out was filed out of time under the proviso to Rule 84.
- An appeal is instituted by lodging a Memorandum of Appeal and Record of Appeal within sixty days of the Notice of Appeal, with the proviso excluding only time certified as required for preparation of proceedings, and an appellant is not entitled to rely on the proviso unless the application for proceedings was in writing and served on the respondent.
Court orders
#- 1.The Notice of Appeal dated and lodged on 15th April 2016 by the 1st Respondent is struck out
- 2.The Memorandum of Appeal and Record of Appeal both lodged on 9th December 2021 by the 1st Respondent are struck out
- 3.No order as to the costs of the application dated 25th January 2022 and of the struck-out appeal
- On appeal from
- Environment and Land Court
- Malindi ELC Case No 164 of 2011
- Jurisdiction invoked
- Rule 84 (formerly Rule 84 of the Court of Appeal Rules 2010, now Rule 86 of the Court of Appeal Rules 2022) - application to strike out a Notice of Appeal or Appeal for failure to take an essential step within the prescribed time; Rule 83/Rule 85 deemed-withdrawal power exercised on the court's own motion.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yusuf & another v Kikuvi & another (Civil Application E001 of 2022) [2023] KECA 689 (KLR)", Case Analysis (2023). Malindi Civil Application No 57 of 2021 (appeal: Jeremiah Musembi Kikuvi v Ali Ibido Yusuf & 2 others, Malindi Civil Appeal No 57 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/689/eng@2023-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.