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Court of AppealOtherCivil Application (Malindi)· [2023] KECA 1226 (KLR)

PAK & another v Kenya Christian Professional Forum & 6 others (Civil Appeal (Application) E020 of 2022) [2023] KECA 1226 (KLR)

Court of Appeal of Kenya
6 October 2023
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
2,032 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal struck out a challenge to an appeal record because it was filed five days late, proving filing dates—not document dates—control deadlines.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Gatembu Kairu, Nyamweya and Lesiit, JJA) on a notice of motion dated 7th October 2022 by Pak and Salim Mohamed seeking to strike out the Record of Appeal dated 5th September 2022 filed by Kenya Christian Professional Forum, Anne Kioko and Catherine Nyambura Kageni, who were not parties to Malindi High Court Petition No. E009 of 2020. The Applicants argued the Respondents lacked standing, that their notice of appeal was merely a notice of address for service under Rule 82, that the appeal raised new issues, and that it was an abuse of process. The Respondents countered, relying on Articles 3(1), 22(1) and 258(1) of the Constitution and Rule 77, that they had standing in public-interest constitutional litigation, and further that the application itself violated the proviso to Rule 86, which requires striking-out applications to be brought within thirty days of service of the record. On the evidence, including an affidavit of service showing email service of the record on 6th September 2022, the court held that time began running on 7th September 2022 and expired on 7th October 2022; the application, though dated 7th October 2022, was lodged on 12th October 2022 without any extension of time and was therefore incompetent. The court struck out the Applicants' application with costs to the 1st to 3rd Respondents, leaving the Record of Appeal intact and the substantive questions of standing and abuse of process unresolved. All authorities cited were relied on by parties only.

Key legal issues

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01

Timeliness of an application to strike out a Record of Appeal under the proviso to Rule 86

Holding

The application was lodged out of time and was therefore incompetent; the court struck out the application itself rather than the Record of Appeal

Reasoning

Rule 92 requires service of the Record of Appeal within seven days of lodging. The court found service was effected on 6th September 2022, so the thirty-day period under the proviso to Rule 86 began on 7th September 2022 and expired on 7th October 2022. Although the application was dated 7th October 2022, it was lodged on 12th October 2022, and no extension of time had been sought or granted.

p. 4
02

Locus standi of non-parties to file an appeal

Holding

Not determined; the court held the issue could not be entertained because the application itself was incompetent and premature

Reasoning

The Applicants argued the 1st to 3rd Respondents were strangers to the trial petition and lacked standing, relying on Muruatetu and other authorities, while the Respondents relied on Articles 3(1), 22(1) and 258(1) of the Constitution and Rule 77. The court did not resolve these competing submissions because the threshold defect of late filing dispositive of the application.

p. 4

Legal principles established

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  • An application to strike out a Notice of Appeal or Record of Appeal under Rule 86 must be brought within thirty days from the date of service of the Notice of Appeal or record of appeal, failing which it is incompetent unless time is extended
  • Under Rule 92 of the Court of Appeal Rules, 2022 the Record of Appeal must be served within seven days of its lodging, and service within that period fixes the starting point of the thirty-day period under the proviso to Rule 86

Court orders

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  1. 1.The Applicants' application dated 7th October 2022 is struck out
  2. 2.Costs of the application to the 1st to 3rd Respondents

Authorities

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Legislation

  • Court of Appeal Rules, 2022Rule 82
  • Court of Appeal Rules, 2022Rule 86
  • Court of Appeal Rules, 2022Rule 92
  • Court of Appeal Rules, 2022Rule 77
  • Constitution of Kenya, 2010Article 3(1)
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 22(1)
  • Constitution of Kenya, 2010Article 164
  • Constitution of Kenya, 2010Article 258(1)

Cases cited (4)

  • Francis Karioko Muruatetu & Another v R & 5 Others
    (2016) eKLR
  • Methodist Church in Kenya v Mohammed Fugucha & 3 others
    [2019] eKLR
  • Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 Others
    (2009) KLR
  • Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 Others
    (2017) eKLR
On appeal from
High Court of Kenya at Malindi
Malindi High Court Petition No. E009 of 2020
Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules, 2022, particularly Rules 82, 86, 92 and 77

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, "PAK & another v Kenya Christian Professional Forum & 6 others (Civil Appeal (Application) E020 of 2022) [2023] KECA 1226 (KLR)", Case Analysis (2023). Civil Application (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1226/eng@2023-10-06

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