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Court of AppealOtherCourt of Appeal Application (striking out) — notice of motion dated 2nd September 2023· [2024] KECA 186 (KLR)

Musambayi & others (Sued on his own behalf and on behalf of 41 others) v Katula & another (Suing as the legal representatives of the Estate of Stephen Katula Muyendi) (Civil Appeal (Application) E827 of 2022) [2024] KECA 186 (KLR)

Court of Appeal
23 February 2024
DMD. K. MusingaKMK. M'inotiMNMumbi Ngugi
2,175 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal filed late because the appellants never served required documents on the other side.

What this practically means

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Executive summary

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By a notice of motion dated 2nd September 2023 under rules 79(1), 84, 85 and 86 of the Court of Appeal Rules, the applicant sought striking out of the record of appeal dated 11th May 2023 filed against the judgment of the Environment and Land Court at Machakos (Ochieng, J.) of 31st October 2022 in ELC Suit No. 209 of 2017. The applicant contended that the notice of appeal filed on 8th November 2022 was never served within the seven days required by rule 79(1), and that the letter requesting typed proceedings was likewise not served, so the certificate of delay could not extend the sixty-day period under rule 84(1). The appellants, opposing through a replying affidavit of Silas Khaemba, argued that the notice was filed within time, that non-service was not intentional, and that the Court should sustain the appeal rather than strike it out on purely technical grounds, invoking Article 159(2)(d) of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act. The Court held that the notice of appeal, served only on 16th February 2023, was invalid for want of timely service and that the proper course would have been a rule 4 application for enlargement of time. Since the letter bespeaking proceedings was not served, the proviso to rule 84(1) and the certificate of delay were of no avail; the record was due on or about 8th January 2023 and the record of 11th May 2023 was incompetent. Following its own precedent and the Supreme Court's decision in Law Society of Kenya v Centre for Human Rights & Democracy, the Court held that statutory time limits are substantive and cannot be cured by Article 159(2)(d). The record of appeal was struck out with costs to the applicant.

Key legal issues

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01

Validity of the notice of appeal for want of service

Holding

The notice of appeal filed on 8th November 2022 was served on 16th February 2023, over three months late; service within seven days of lodging is a mandatory essential step, and the remedy was an application under rule 4 for enlargement of time, not a conjunctive-versus-disjunctive argument about filing.

Reasoning

Rule 77 requires notice of appeal within fourteen days of the decision and rule 79(1) requires service on all persons directly affected within seven days of lodging. The purpose of service is to alert the respondent that the case has escalated, enabling preparation. Non-service gives a false belief that the matter has ended and occasions ambush and prejudice. The appellants should have sought enlargement of time under rule 4.

p. 3
02

Institution of the appeal out of time under rule 84(1)

Holding

Because the letter bespeaking proceedings was never served, the proviso to rule 84(1) and the certificate of delay could not assist the appellants; the record of appeal was due on or about 8th January 2023 and the record dated 11th May 2023 was incompetent and had to be struck out under rule 86.

Reasoning

Rule 84(1) requires an appeal to be instituted within sixty days of lodging the notice of appeal, unless the proviso applies. Rule 84(2) makes express service of the written application for proceedings a condition of invoking the proviso. The letter requesting proceedings was not served, so no time was excluded and the sixty days ran from 8th November 2022, expiring around 8th January 2023.

p. 4
03

Whether Article 159(2)(d) and the overriding objective can cure the non-compliance

Holding

No. Statutory timeframes for instituting appeals are substantive; they protect a respondent's right to reasonable time to prepare and cannot be waived or lessened under Article 159(2)(d) or sections 3A and 3B of the Appellate Jurisdiction Act.

Reasoning

The Court relied on its prior decisions holding that lodging an appeal out of time is not a mere procedural technicality curable by the overriding principle, and on the Supreme Court's holding that Article 159(2)(d) is not a panacea for all procedural shortfalls. Clear procedures prescribed by statute must be strictly followed.

p. 4

Legal principles established

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  • A notice of appeal must be served within seven days of lodging as required by rule 79(1); failure to serve it within the prescribed time renders the notice invalid and the appeal incompetent unless time is enlarged under rule 4.
  • An appellant cannot rely on the proviso to rule 84(1) (exclusion of time certified for preparation of proceedings) unless the letter requesting proceedings was served on the respondent.
  • Failure to observe statutory timelines for commencing and lodging an appeal is a substantive defect, not a procedural technicality curable under Article 159(2)(d) or sections 3A and 3B of the Appellate Jurisdiction Act.

Court orders

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  1. 1.The record of appeal dated 11th May 2023 is struck out as incompetent
  2. 2.Costs of the application awarded to the applicant

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 77
  • Court of Appeal Rulesrule 79(1)
  • Court of Appeal Rulesrule 84(1), (2), (3)
  • Court of Appeal Rulesrule 85
  • Court of Appeal Rulesrule 86(a) and (b)
  • Court of Appeal Rulesrule 118
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Appellate Jurisdiction Actsections 3A and 3B

Cases cited (6)

  • Daniel Nkirimpa Monirei vs Sayialel Ole Koilel & 4 Others
    [2016] eKLR
  • Mistry Premji Ganji (Investments) Limited vs Kenya National Highways Authority
    [2019] eKLR
  • Ramji Davji Vekaria vs. Joseph Oyula
    [2011] eKLR
  • Law Society of Kenya vs Centre for Human Rights & Democracy & 12 Others
    [2014] eKLR
  • Jaldesa Tuke Dabelo vs Independent Electoral & Boundaries Commission & Another
    [2015] eKLR
  • Intercounties Importers and Exporters vs Teleposta Pension Scheme Registered Trustees & 5 Others
    (Civil Appeal (Application) No. 293 of 2016) [2021] KECA44 (KLR) (23 September 2021) (Ruling)
On appeal from
Environment and Land Court
ELC Suit No. 209 of 2017
Jurisdiction invoked
Rules 79(1), 84(1) and (2), 85, 86(a) and (b) 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 (5)

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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, "Musambayi & others (Sued on his own behalf and on behalf of 41 others) v Katula & another (Suing as the legal representatives of the Estate of Stephen Katula Muyendi) (Civil Appeal (Application) E827 of 2022) [2024] KECA 186 (KLR)", Case Analysis (2024). Court of Appeal Application (striking out) — notice of motion dated 2nd September 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/186/eng@2024-02-23

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