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Court of AppealPartially AllowedNotice of Motion dated May 10, 2019 (appellant's appeal dated April 5, 2019)· [2023] KECA 1275 (KLR)

Standard Ltd & another v Onchieku (Civil Application 134 of 2019) [2023] KECA 1275 (KLR)

Court of Appeal of Kenya
27 October 2023
HOH. A. OmondiJMJ. M. MativoGNG. W. Ngenye-Macharia
3,151 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to strike out an appeal because the strike-out application itself missed the mandatory 30-day deadline, letting the appeal proceed on its merits.

What this practically means

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Executive summary

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This Court of Appeal (Omondi, Mativo and Ngenye-Macharia, JJAA) determined a Notice of Motion dated May 10, 2019 by which the applicants sought to strike out the respondent's appeal, filed April 5, 2019, as out of time without leave. The appeal lay against a High Court judgment delivered by Thuranira, J. on June 29, 2018. The applicants argued that the letter requesting proceedings was never copied to them, so time never stopped running under rule 82, and relied on Patrick Njuguna Kariuki v Del Monte Kenya Ltd for strict adherence to the Rules. The respondent contended the letter was served with the Notice of Appeal on July 11, 2018 and invoked article 159(2)(b) of the Constitution. The court held, first, that the application was itself incompetent: the proviso to rule 86 requires a strike-out application to be lodged within 30 days of service, and the applicants never stated when the Record of Appeal was served, so the benefit of doubt went to the respondent. Secondly, on the merits, the registry receipt and the Certificate of Delay showed the letter requesting proceedings was filed on July 20, 2018, making it impossible that it was served on July 11, 2018; the 60 days under rule 82 expired on September 6, 2018 and the Record of Appeal was thus out of time. However, following Esther Anyango Ochieng v Transmara Sugar Company, the court held that where an appeal has in fact been instituted, the notice of appeal cannot be deemed withdrawn under rule 83. Since the appeal was filed two days after the Certificate of Delay issued, the court struck out the application with no orders as to costs, deemed the Notice of Appeal not withdrawn, and directed that the appeal be determined on its merits.

Key legal issues

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01

Competency of the strike-out application under the proviso to rule 86

Holding

The application was itself incompetent because it was not shown to have been filed within 30 days of service of the Notice of Appeal or Record of Appeal

Reasoning

The proviso to rule 86 mandatorily requires a strike-out application to be filed within 30 days of service. The applicants did not state when the Record of Appeal was served on them, and it was not for the court to fill the gaps. Relying on Salama Beach Hotel and the authorities it cited, the court held that an out-of-time strike-out application is fatally defective and should itself be struck out.

p. 4
02

Timeliness of the Record of Appeal under rule 82(1)

Holding

The Record of Appeal filed on April 5, 2019 was out of time because the letter requesting proceedings was filed on July 20, 2018, after the Notice of Appeal, so it could not have been served on July 11, 2018

Reasoning

The registry receipt showed the letter requesting proceedings was lodged on July 20, 2018, and the Certificate of Delay confirmed this. It was impossible for the letter to have been served on July 11, 2018, nine days before its filing. Without reliance on the proviso, the 60 days for instituting the appeal expired on September 6, 2018, so the Record of Appeal was filed out of time.

p. 4
03

Whether the Notice of Appeal should be deemed withdrawn under rule 83

Holding

No - where the appeal has in fact been instituted, the notice of appeal cannot be fictitiously deemed withdrawn

Reasoning

Following Esther Anyango Ochieng v Transmara Sugar Company, the court held that to deem a notice of appeal withdrawn when the appeal has actually been instituted would be to allow shadows to swallow substance. The deeming power under rule 83 applies where no appeal has been lodged within the appointed time; once a record of appeal exists, the notice falls outside the deeming purview of the rule.

p. 5
04

Whether the appeal should nevertheless be determined on its merits

Holding

Yes - the appeal was filed two days after the Certificate of Delay issued and should be determined on its merits

Reasoning

Although the Record of Appeal was filed out of time, the court could not say the respondent failed to file the appeal or was guilty of laches, as he filed it two days after obtaining certified proceedings. The court also noted it could not ignore the possible infraction, but concluded the interests of justice favoured a determination on the merits rather than striking out the appeal.

p. 6

Legal principles established

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  • An application to strike out a notice of appeal or an appeal under rule 86 must be brought within 30 days of service of the notice or record of appeal; failure to do so renders the application fatally defective and liable to be struck out
  • A party relying on the proviso to rule 82(1) to exclude time must show that its written application for proceedings was served on the respondent; the registry receipt of the letter is prima facie evidence of its filing date
  • Where an appeal has in fact been instituted, the notice of appeal falls outside the deeming purview of rule 83 and cannot be deemed withdrawn
  • The benefit of doubt on service dates is given to the party against whom the strike-out application is made; the court will not embark on a fact-finding mission where the applicant has not stated the date of service

Court orders

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  1. 1.Strike out the application dated May 10, 2019
  2. 2.No orders as to costs
  3. 3.Deem the Notice of Appeal dated July 2, 2019 as not withdrawn
  4. 4.The appeal is properly on record and shall be determined on its merits

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 3(1)
  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B
  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 42(1)
  • Court of Appeal Rulesrule 77
  • Court of Appeal Rulesrule 79
  • Court of Appeal Rulesrule 82 (incl. 82(1) and 82(2))
  • Court of Appeal Rulesrule 83
  • Court of Appeal Rulesrule 84 (incl. 84(1) and (2))
  • Court of Appeal Rulesrule 85
  • Court of Appeal Rulesrule 86
  • Court of Appeal Rulesrule 118
  • Constitution of Kenya, 2010article 159(2)(b)

Cases cited (7)

  • Patrick Njuguna Kariuki vs Del Monte Kenya Limited
    [2020] eKLR
  • Salama Beach Hotel Limited & 4 others vs Kenyariri & Associates Advocates & 4 others
    [2016] eKLR
  • Joyce Bochere Nyamweya v Jemima Nyaboke Nyamweya & another
    [2016] eKLR
  • William Mwangi Nguruki v Barclays Bank of Kenya Ltd
    [2014] eKLR
  • Michael Mwalo v Board of Trustees of National Social Security Fund
    [2014] eKLR
  • Mae Properties Limited vs Joseph Kibe & another
    [2017] eKLR
  • Esther Anyango Ochieng vs Transmara Sugar Company
    [2020] eKLR
On appeal from
High Court of Kenya
Jurisdiction invoked
Sections 3(1), 3A and 3B of the Appellate Jurisdiction Act and rules 42(1), 82, 83, 84 and 86 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Standard Ltd & another v Onchieku (Civil Application 134 of 2019) [2023] KECA 1275 (KLR)", Case Analysis (2023). Notice of Motion dated May 10, 2019 (appellant's appeal dated April 5, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1275/eng@2023-10-27

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