Kipyego & another v Kiyuk (Civil Application E041 of 2023) [2024] KECA 263 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal filed 24 days late, confirming the 14-day deadline for notices of appeal is strictly 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 the striking-out application was filed within the 30-day period prescribed by Rule 86 of the Court of Appeal Rules
- 2.Whether the respondent's notice of appeal was filed out of time in breach of Rule 77(1) and (2) of the Court of Appeal Rules and ought to be struck out
- 3.Who should bear the costs of the application
Key legal issues
#Mandatory nature of the 14-day time limit in Rule 77(2) for lodging a notice of appeal
The notice of appeal lodged 24 days after judgment was out of time; Rule 77(2) is mandatory and the notice cannot be salvaged except through extension of time, which was never sought
The Court applied its own precedents holding Rule 77(2) couched in mandatory terms. The judgment was delivered on 27th June 2023 and the notice lodged on 21st July 2023, outside the 14 days. The respondent's explanation for the delay, being unrepresented, was irrelevant because reasons for delay are considered only on a properly moved extension-of-time application, not in reply to a striking-out application.
Timeliness of the striking-out application under the proviso to Rule 86
The application dated 18th August 2023 was brought within 30 days of service of the notice of appeal on 28th July 2023, and was therefore timeous
The proviso to Rule 86 requires a striking-out application to be brought within 30 days from the date of service of the notice of appeal. Service occurred on 28th July 2023 and this evidence was unchallenged. The application dated 18th August 2023 fell within the 30 days, so the Court had jurisdiction to entertain it.
Costs follow the event
No reason was advanced to depart from the principle that costs follow the event; the respondent pays the applicants' costs
The Court restated the established principle that costs follow the event unless the court, for good reason, directs otherwise. Since the applicants succeeded and no reason for departure was advanced, the respondent was ordered to meet the applicants' costs of the application.
Legal principles established
#- Rule 77(2) of the Court of Appeal Rules is mandatory; a notice of appeal filed out of time cannot be sanctioned by the Court and must be struck out, and a party must invoke the extension-of-time jurisdiction to revive an appeal
Court orders
#- 1.The respondent's notice of appeal dated 20th July 2023 and lodged on 21st July 2023 is struck out
- 2.The notice of motion dated 18th August 2023 is allowed
- 3.The respondent shall meet the applicants' costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Iten
- E&LC Appeal No. E017 of 2022
- Jurisdiction invoked
- Inherent/appellate supervisory jurisdiction of the Court of Appeal under Rule 86 of the Court of Appeal Rules (application to strike out a notice of appeal)
Relief refused
#Respondent's request to have the out-of-time notice of appeal deemed as duly filed
Reasons for delay can only be considered on an application for extension of time moved appropriately (ideally before a single judge), not through a reply to a striking-out application
Costs
The respondent shall meet the applicants' costs of the application
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.
Once time lapses, a party seeking to resuscitate his appeal must invoke the Court's jurisdiction to extend time. A notice of appeal once filed out of time cannot be sanctioned by the Court but must be struck out.
the reasons for delay are open for consideration only when the Court is moved appropriately and not through a reply to an application for striking out
In the result, the applicants' application dated 18th August 2023 succeeds. The respondent's notice of appeal dated 20th July 2023 and lodged in the registry on 21st July 2023 is hereby struck out. In short, the notice of motion dated 18th August 2023 is hereby allowed.
Regarding the issue of costs, the principle is that costs follow the event unless for good reason the court directs otherwise. In this matter, no reason has been advanced to make us to depart from the established rule. As such the respondent shall meet the applicants' costs of the application.
Issues in the judgment
#Date of the notice of appeal is stated inconsistently - 21st July 2023 in the narrative but 20th July 2023 in the orders
The narrative describes the respondent with male pronouns although the name Kimoi Tamining Kiyuk appears female; also a typographical error dating service as 28th July 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipyego & another v Kiyuk (Civil Application E041 of 2023) [2024] KECA 263 (KLR)", Case Analysis (2024). Civil Application (notice of motion dated 18th August 2023, Court of Appeal, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/263/eng@2024-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.