Tarzan Limited v Koima Developers Limited & 1 other
The bottom line
#Kenya's Court of Appeal struck out a union's attempt to kill an appeal because the application was filed over a year late, past the mandatory 30-day deadline.
What this practically means
#Executive summary
#Key legal issues
#Competence of the application under the proviso to Rule 84 (2010 Rules) / Rule 86 (2022 Rules)
The application, filed on September 15, 2022, more than 30 days after service of the notice of appeal on May 8, 2021, was fatally defective and had to be struck out.
Rule 84 of the 2010 Rules and Rule 86 of the 2022 Rules contain a mandatory proviso barring strike-out applications brought more than thirty days after service of the notice of appeal or record of appeal. The court relied on its prior decisions in Salama Beach Hotel and William Mwangi Ngaruki holding that non-compliance renders such applications incompetent unless leave is obtained. The applicant conceded no such leave was sought; hence the court struck out the application itself rather than the notice of appeal.
Nature of the power to strike out an appeal
Striking out is discretionary, draconian, and reserved for plain and obvious cases.
The court framed the striking-out power as discretionary and exceptional, to be exercised on the circumstances of each case. Because the competency question was dispositive, the court did not need to reach the merits of the alleged breaches of Rules 77(1) and 82 in the underlying appeal.
Legal principles established
#- An application to strike out a notice of appeal or an appeal must be brought within thirty days of service of the notice of appeal or record of appeal, and an application filed outside that period is fatally defective.
- Striking out is a draconian remedy exercised only in plain and obvious instances and depends on the circumstances of each case.
Court orders
#- 1.The application dated September 15, 2022 is fatally defective and is hereby struck out
- Jurisdiction invoked
- Rules 77(1), 82, 83 and 84 of the Court of Appeal Rules, 2010 and Sections 3, 3A and 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tarzan Limited v Koima Developers Limited & 1 other", Case Analysis (2023). Not stated in the judgment (application dated September 15, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1115/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.