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Court of AppealPartially AllowedNotice of motion dated 5th September, 2019 (Civil Application)· [2023] KECA 1611 (KLR)

Kuura & 2 others v M’riria & 2 others (Civil Application 151 of 2019) [2023] KECA 1611 (KLR)

Court of Appeal of Kenya
22 September 2023
2,251 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Court of Appeal killed a dormant appeal on its own motion after three years of inaction, but refused a late strike-out application filed outside the 30-day window.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Mohammed, Kimaru and Muchelule, JJ.A) on a notice of motion dated 5th September, 2019 by the applicants, who sought to strike out the respondents' notice of appeal dated 22nd March, 2018 (filed 26th March, 2018) and a certificate of delay dated 20th February, 2019, in a land dispute over LR Nos. Muthambi/Gatua/1266 and 503 dating back to 1983. The respondents, though served, filed neither a response nor submissions. The Court first dealt with Rule 84 (now Rule 84(1) of the 2022 Rules), whose proviso requires striking-out applications to be brought within thirty days of service of the notice of appeal or record of appeal. The applicants' application, filed over one year and eight months after the notice of appeal and without an extension of time under Rule 4, was held incompetent and a non-starter, following Joyce Bochere Nyamweya, Salama Beach Hotel and Gichuki King'ara. The applicants had invited the Court, invoking Rule 85 (formerly Rule 83), to deem the notice of appeal withdrawn on its own motion. Relying on Quicklubes EA Limited v Kenya Railways Corporation, the Court found that the respondents, having obtained certified proceedings and judgment on 15th February, 2019, were obliged to lodge the record of appeal within sixty days but went to slumber for over three years. Balancing the applicants' right to enjoy the fruits of their judgment against the respondents' unprosecuted right of appeal, the Court invoked Rule 85 suo motu, deemed the notice of appeal dated 26th March, 2018 withdrawn, and awarded costs to the applicants. The net effect is that the intended appeal cannot proceed, while the striking-out route under Rule 84 was refused as incompetent.

Key legal issues

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01

Competency of an out-of-time Rule 84 striking-out application

Holding

The applicants' application, filed over one year and eight months after the notice of appeal, was incompetent under the mandatory proviso to Rule 84.

Reasoning

The proviso to Rule 84 caps striking-out applications at thirty days from service of the notice of appeal or record of appeal. The applicants conceded the delay and, instead of applying for extension of time under Rule 4, invited the Court to act. Precedent establishes the proviso is mandatory; a party caught by lapse of time must first seek extension under Rule 4. The application therefore failed as a non-starter.

p. 4
02

Deeming a notice of appeal withdrawn under Rule 85 suo motu

Holding

Having obtained certified proceedings on 15th February, 2019, the respondents were obliged to file and serve the record of appeal within sixty days; having failed, the notice of appeal was deemed withdrawn under Rule 85 on the Court's own motion.

Reasoning

Rule 85 deems a notice of appeal withdrawn where the party fails to institute the appeal within the appointed time, and empowers the Court to act on its own motion. The Court balanced the applicants' right to enjoy the fruits of their judgment against the respondents' unprosecuted right of appeal, and found no reason not to apply the Rule.

p. 5
03

Effect of the certificate of delay on the 60-day timeline

Holding

The respondents could not rely on delay in preparing the record because certified proceedings and judgment were released on 15th February, 2019 and the certificate of delay issued on 20th February, 2019, leaving them free to lodge the record within sixty days.

Reasoning

The rule recognizes that delays in typing and availing proceedings are excluded from the 60-day computation via a certificate of delay. Here, the certificate was in the court file since 2019 and the respondents took no further procedural steps under Rule 84(1) to progress the appeal. Their inaction thus fell outside any excusable delay.

p. 3

Legal principles established

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  • An application to strike out a notice of appeal under Rule 84 must be brought within thirty days of service of the notice of appeal or record of appeal; out-of-time applications are incompetent unless leave is granted under Rule 4.
  • Where an appellant lodges a notice of appeal but fails to institute the appeal within the appointed time, the Court may, on its own motion or on application, deem the notice of appeal withdrawn under Rule 85.
  • A certificate of delay suffices to exclude delay beyond the prescribed 60-day period for filing the record of appeal, where proceedings were bespoken and served within thirty days.

Court orders

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  1. 1.The application to strike out the notice of appeal under Rule 84 was found incompetent for being filed outside the thirty-day period in the proviso and was not granted
  2. 2.Rule 85 of the Court of Appeal Rules invoked on the Court's own motion
  3. 3.The notice of appeal dated 26th March, 2018 deemed withdrawn
  4. 4.Costs awarded to the applicants

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 42(1)
  • Court of Appeal Rules, 2010Rule 75
  • Court of Appeal Rules, 2010Rule 82(1) and (2)
  • Court of Appeal Rules, 2010Rule 83
  • Court of Appeal Rules, 2010Rule 84
  • Court of Appeal Rules, 2022Rule 4
  • Court of Appeal Rules, 2022Rule 84(1)
  • Court of Appeal Rules, 2022Rule 85(1)

Cases cited (10)

  • Kenya Ports Authority v Maur Abdalla Bwanamaka
    (2018) eKLR
  • Muzaffer Musafe Essajee & Another v Anne Njeri Mwangi
    [2021] eKLR
  • Charles Wanjohi Wathuku v. Githinji Ngure & Another
    [2016] eKLR
  • John Mutai Mwangi & 26 Others v. Mwenja Ngure & 4 Others
    [2016] eKLR
  • Joyce Bochere Nyamweya v Jemima Nyaboke Nyamweya & another
    [2016] eKLR
  • Salama Beach Hotel Limited & 4 others v Kenyariri & Associates Advocates & 4 others
    [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
  • Gichuki King'ara & Co Advocates v Al Jalal Enterprises Ltd and Others, Civil Appl. No. NAI 211 of 2012
    unreported
  • Quicklubes EA Limited v. Kenya Railways Corporation
    [2014] eKLR
Jurisdiction invoked
Court of Appeal Rules, 2010 (now Court of Appeal Rules, 2022), Rules 42(1), 75, 82(1) and (2), 83, 84 and 85, and the Court's inherent supervisory jurisdiction over appeals lodged before it

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, "Kuura & 2 others v M’riria & 2 others (Civil Application 151 of 2019) [2023] KECA 1611 (KLR)", Case Analysis (2023). Notice of motion dated 5th September, 2019 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1611/eng@2023-09-22

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