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Court of AppealOtherNotice of Motion dated 22nd August 2019 (in Civil Appeal No. 411 of 2019)· [2023] KECA 909 (KLR)

Vomorono Limited v Saikwa & another (Civil Application 280 of 2019) [2023] KECA 909 (KLR)

Court of Appeal of Kenya
24 July 2023
560 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 threw out Vomorono Limited's attempt to strike out a rival's appeal because the company waited too long, missing a strict 15-month deadline.

What this practically means

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Executive summary

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Vomorono Limited moved the Court of Appeal by Notice of Motion dated 22nd August 2019 seeking to strike out the 1st respondent's notice of appeal filed on 19th June 2018 against a ruling of 5th June 2018 in Succession Cause No. 599 of 1986, and seeking costs. The applicant argued that the 1st respondent, having requested certified proceedings on 19th June 2018, failed to file his intended appeal within the prescribed period after the proceedings were certified ready on 20th June 2019. The 1st respondent opposed, deposing through counsel Burton Isindu that the record of appeal had been filed on 26th August 2019 in Civil Appeal No. 411 of 2019 within time, as evidenced by a certificate of delay issued on 1st July 2019, and that the Motion itself was time-barred. The court held that the notice of appeal complied with the mandatory requirements of rules 77(2) and 79(1), having been filed within 14 days of the ruling and served the following day. It further held that the applicant's Motion, filed on 23rd August 2019, more than fifteen months after service of the notice of appeal, offended the mandatory proviso to rule 86 and was therefore incompetent. Declining exhaustive scrutiny of submissions it described as resting on a misperception of statute and procedure, the court struck out the Motion with costs to the respondents. The underlying record of appeal in Civil Appeal No. 411 of 2019 stands.

Key legal issues

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01

Timeliness of the notice of appeal

Holding

The notice of appeal filed on 19th June 2018 was validly filed within 14 days of the ruling of 5th June 2018 and served the next day, satisfying rules 77(2) and 79(1).

Reasoning

The court traced the chronology: the ruling was delivered on 5th June 2018, the notice of appeal was filed on 19th June 2018 within the 14-day window prescribed by rule 77(2), and it was served on the applicant the following day, 20th June 2018. The notice therefore met the mandatory requirements of rules 77(2) and 79(1) and could not be struck out.

p. 2
02

Competency of the striking-out Motion under rule 86

Holding

The applicant's Motion, filed on 23rd August 2019, more than fifteen months after service of the notice of appeal, offended the mandatory proviso to rule 86 and was incompetent.

Reasoning

The proviso to rule 86 requires an application to be made within fifteen months following service of the notice of appeal. Counting from service on 20th June 2018, the Motion filed on 23rd August 2019 came more than fifteen months later. The court treated this breach of a mandatory provision as fatal, without needing to examine the parties' submissions, which it found to rest on a misperception of statute and procedure.

p. 2

Legal principles established

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  • A notice of appeal must be filed within 14 days of the impugned decision under rule 77(2) and served; compliance with rules 77(2) and 79(1) renders a notice of appeal valid.
  • An application to strike out a notice of appeal must be brought within fifteen months of service of the notice of appeal as required by the mandatory proviso to rule 86; a later application is incompetent.

Court orders

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  1. 1.The applicant's Notice of Motion dated 22nd August 2019 is declared incompetent and struck out
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal Rulesrule 77(2)
  • Court of Appeal Rulesrule 79(1)
  • Court of Appeal Rulesproviso to rule 86
  • Court of Appeal Rules, 2022rules 77(2) and 79(1)
On appeal from
High Court of Kenya, Family Division
Succession Cause No. 599 of 1986
Jurisdiction invoked
Court of Appeal Rules, rules 77(2), 79(1) and the proviso to rule 86 (inherent appellate supervisory jurisdiction over incompetent applications)

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, "Vomorono Limited v Saikwa & another (Civil Application 280 of 2019) [2023] KECA 909 (KLR)", Case Analysis (2023). Notice of Motion dated 22nd August 2019 (in Civil Appeal No. 411 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/909/eng@2023-07-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.