Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal (Mombasa) - amended Notice of Motion dated April 12, 2023· [2023] KECA 1326 (KLR)

Attorney General v Kioko (Civil Appeal (Application) E017 of 2022) [2023] KECA 1326 (KLR)

Court of Appeal of Kenya
10 November 2023
SKS. Gatembu KairuJLJ. LesiitGOG. V. Odunga
3,219 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal dismissed the Attorney General's bid to strike out an appeal, confirming that timely filing based on a certificate of delay counts.

What this practically means

#

Executive summary

#
This is a single judgment of a three-judge bench of the Court of Appeal at Mombasa (Kairu, Lesiit and Odunga, JJA) dismissing an amended Notice of Motion dated April 12, 2023 by the Attorney General seeking to have the appeal withdrawn or struck out for failure to file a record of appeal within 60 days of lodging the Notice of Appeal, following a judgment of the High Court in Mombasa Constitutional Petition No. 19 of 2019 delivered on April 19, 2021. The court first clarified the proviso to rule 86 of the Court of Appeal Rules, 2022: the 30-day time bar on strike-out applications runs from service of the Notice of Appeal or Record of Appeal, and does not apply where the complaint is that the record was never filed within 60 days, since the respondent must wait for that period to lapse. On the merits, the court found that the letter requesting typed proceedings was duly copied to the applicant, placing the burden on the applicant, under section 112 of the Evidence Act, to prove that the service stamp was not its own - a burden it did not discharge. The certificate of delay was therefore properly issued and the record was filed within the enlarged time. The court further held, following Cassam and Shah v Akiba Bank, that an unendorsed Notice of Appeal may validly be served. Because the applicant failed to lodge an address for service under rule 81(1)(a), it could not complain of non-service of the record. No finding of backdating was made, there being no requirement for certification of a judgment appealed against. The motion was dismissed with costs to the respondent. This disposition binds the High Court and subordinate courts on the procedural rules construed.

Key legal issues

#
01

Timeousness of an application under rule 86 to strike out an appeal

Holding

The 30-day time bar in the proviso to rule 86 runs from service of the Notice of Appeal or Record of Appeal; it does not apply where the ground is failure to file the Record within 60 days, since the respondent must wait for the 60 days to lapse.

Reasoning

The court read the proviso as a limitation, condition or stipulation triggered only by service. Where the complaint is that the Record of Appeal has not been filed within the prescribed 60 days, the respondent must necessarily wait for the 60 days to run, and cannot be expected to apply within 30 days of service of the Notice of Appeal while the appellant's time is still running.

p. 4
02

Validity of service of an unendorsed Notice of Appeal

Holding

A Notice of Appeal may be validly served before it is lodged or endorsed; the Rules contain no prohibition against such service, and insisting on endorsement would do injustice to an intending appellant.

Reasoning

Rule 79(1) permits service before or within seven days after lodging. Endorsement delays not attributable to the appellant should not penalise them, since a court of justice has no jurisdiction to do injustice. The court followed old authorities in pari materia, including Cassam and Shah v Akiba Bank, holding service of an unsigned/unendorsed notice valid.

p. 5
03

Consequence of the applicant's failure to lodge an address for service

Holding

A party served with a Notice of Appeal who fails to lodge and serve an address for service under rule 81(1)(a) cannot complain of non-service of the Record of Appeal as a ground for striking out the appeal.

Reasoning

Rule 81(1)(a) imposes a duty on a respondent served with a Notice of Appeal to lodge an address for service within 14 days. The applicant did not contend it complied, and its excuse (non-endorsement of the Notice) was rejected. Allowing it to rely on its own default to terminate the appeal would permit it to create an absurd situation and profit from it.

p. 6
04

Alleged backdating of the certified judgment in the Record of Appeal

Holding

No finding of backdating was made; there is no requirement in the Rules for certification of a judgment being appealed against, and the discrepancy was attributed to the Deputy Registrar's certification process.

Reasoning

The court held it had no material on which to make so fundamental a finding as backdating. It further noted that the Rules contain no requirement for certification of a judgment appealed against, and that a presumption of regularity applies to documents supplied to the Deputy Registrar in issuance of the certificate of delay.

p. 6
05

Authenticity of the stamp evidencing service of the request for proceedings

Holding

Since the applicant contended the stamp was not its own, the burden lay on it under section 112 of the Evidence Act to prove that fact; it did not, so the letter requesting proceedings was taken as duly copied to the applicant.

Reasoning

The authenticity of the stamp was a fact especially within the applicant's knowledge. The applicant could have produced an imprint of its genuine stamp but did not. The court therefore found the letter bespeaking proceedings was duly copied to the applicants, grounding the validity of the certificate of delay.

p. 4

Legal principles established

#
  • The 30-day limitation in the proviso to rule 86 applies only where the party has been served with the Notice of Appeal or Record of Appeal; it does not apply where the complaint is that service has not been effected at all or that the Record of Appeal was not filed within 60 days.
  • A Notice of Appeal that has been filed but not lodged/endorsed by the Deputy Registrar may validly be served.
  • A respondent served with a Notice of Appeal who fails to lodge an address for service under rule 81(1)(a) cannot later complain of non-service of the Memorandum and Record of Appeal.
  • The party alleging that a service stamp is not its own bears the burden of proving that fact under section 112 of the Evidence Act.

Court orders

#
  1. 1.The applicant's amended Notice of Motion dated April 12, 2023 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

#

Legislation

  • Court of Appeal Rules, 2022rule 79(1)
  • Court of Appeal Rules, 2022rule 81(1)(a)
  • Court of Appeal Rules, 2022rule 82
  • Court of Appeal Rules, 2022rule 84
  • Court of Appeal Rules, 2022rule 85
  • Court of Appeal Rules, 2022rule 86 (and proviso)
  • Court of Appeal Rules, 2022rule 99(1)
  • Court of Appeal Rules, 2010rule 76(1)
  • Court of Appeal Rules, 2010rule 78(1)(a)
  • Court of Appeal Rules (former)rule 80 (proviso)
  • Court of Appeal Rules (former)rule 74(1) and (2)
  • Evidence Actsection 112

Cases cited (8)

  • David Ojwang Okebe & 10 others v South Nyanza Sugar Company Limited
    Civil Appeal (Application) No. 139 of 2008 [2009] KLR 310
  • Sarah Achieng Salasia v Fred Muchira O. & 2 others
    Civil Application No. Nai. 188 of 2004 [2005] 2 EA 270; [2005] 1 KLR 762
  • M Mwenesi v Shirley Luckhurst & another
    Civil Application No. Nai. 170 of 2000
  • Kenya Industrial Estates Ltd v Transland Shoe Manufacturers Ltd. & 2 others
    Civil Application No. Nai 364 of 1999
  • Gulamhussein Noormohamed Cassam & another v Shashikant Ramji Sachania & another
    1 KAR 24
  • Shital Bimal Shah & 2 others v Akiba Bank Limited
    [2006] 2 EA 323
  • Taracisio Githaiga Ruithibo v Mbuthia Nyingi
    Civil Appeal No. 21 of 1982; [1984] KLR 505
  • Eric Gitari v the Attorney General & 20 others
    Nairobi Civil Appeal 536 of 2019
On appeal from
High Court of Kenya at Mombasa
Constitutional Petition No. 19 of 2019
Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules, 2022 (rules 79, 81, 82, 84, 86 and 99) over an interlocutory application within a pending appeal

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Attorney General v Kioko (Civil Appeal (Application) E017 of 2022) [2023] KECA 1326 (KLR)", Case Analysis (2023). Civil Appeal (Mombasa) - amended Notice of Motion dated April 12, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1326/eng@2023-11-10

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