Ruto & another v Keitany & 5 others (Civil Appeal (Application) 94 of 2019) [2023] KECA 1552 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an entire appeal because the appellants missed court-ordered filing deadlines, confirming appeal timelines are mandatory.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not the application to strike out the appeal is merited
Key legal issues
#Whether the notice of appeal and record of appeal ought to be struck out for late service in breach of the court's orders of October 17, 2019
Yes. The respondents failed to serve the notice of appeal within the ordered 14 days and the record of appeal within 60 days, contravening the court order and rules 85 and 86 of the Court of Appeal Rules, 2022, and gave no reason for the default; the notice and record were struck out as incompetent.
The court found as common ground that the record of appeal was served late and that counsel for the respondents conceded the delay without offering any explanation or seeking orders to regularise it. Relying on Mae Properties, the court held that the timelines in the Rules are mandatory and their breach invites sure consequences. The application was brought on the limb of rule 86 that an essential step was not taken within the prescribed time, which was established, so the appeal was incompetent and was struck out.
Legal principles established
#- Where an essential step in an appeal is not taken within the prescribed time and the default is not regularised, the notice of appeal and record of appeal are incompetent and liable to be struck out under rules 85 and 86 of the Court of Appeal Rules, 2022.
- The deeming consequence of failure to institute an appeal within the appointed time sets in automatically the moment the appointed time lapses; the timelines in the Court's Rules are mandatory and command obedience.
Court orders
#- 1.The notice of appeal is struck out
- 2.The record of appeal is struck out
- 3.The respondents shall bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Rule 86 of the Court of Appeal Rules, 2022 (inherent supervisory power to strike out a notice of appeal or appeal where an essential step has not been taken within the prescribed time)
Relief refused
#Respondents' implied plea to sustain the appeal despite late service (no replying affidavit or submissions filed)
The respondents conceded the delay and advanced no reason for non-compliance with the court orders and did not seek to regularise the default
Costs
The respondents shall bear the costs of this application, costs following the event and in compliance with rule 85(2) of the Court of Appeal Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, the application is allowed. We strike out the notice of appeal and the record of appeal.
As costs follow the event, and in compliance with rule 85(2) of the Court of Appeal Rules, the respondents shall bear the costs of this application.
the said consequence is couched in mandatory, peremptory terms: the offending party shall be deemed to have withdrawn the appeal. It seems to us that the deeming sets in the moment the appointed time lapses.
The Rules are expressed in clear and unambiguous terms and they command obedience.
Issues in the judgment
#The judgment refers to rule 85 of the Court of Appeal Rules, 2022 but quotes from the judgment in Mae Properties a rule 83 of the 2010 Rules in materially identical terms; the rule numbering differs across the two rule sets quoted in the same judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ruto & another v Keitany & 5 others (Civil Appeal (Application) 94 of 2019) [2023] KECA 1552 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1552/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.