Sub-County Co-operative Officer, Turbo & Soy v Raiplywoods (K) Limited & 2 others (Civil Appeal 81 of 2020) [2024] KECA 303 (KLR)
The bottom line
#The Court of Appeal struck out a late attempt to kill an appeal, confirming a strict 30-day deadline for filing strike-out applications in Kenya.
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 1st respondent's record of appeal ought to be struck out for being filed out of time
- 2.Whether the 1st respondent's record of appeal ought to be struck out for being served out of time
Key legal issues
#Whether the record of appeal was filed out of time
No - the period taken by the court to prepare proceedings, as certified by the certificate of delay, is excluded under the proviso to Rule 84(1), so the record was filed within time.
The 1st respondent applied for proceedings within 30 days of the decision and served the application. The Registrar issued a certificate of delay certifying the period required for preparation and delivery of proceedings. Under the proviso to Rule 84(1), that certified period is excluded when computing the time within which the appeal is to be instituted, so the record lodged after collection of the proceedings was in time.
Whether the record of appeal was served out of time contrary to Rule 90
The court found that in all probability the applicant was served, or at least was aware of the record, despite the absence of an affidavit of service.
The 1st respondent did not annex an affidavit of service to prove service on 19th March 2020, but the correspondence between the parties and the applicant's eventual acknowledgment of receipt of the 'original copy' on 5th May 2021 led the court to conclude that the applicant must have been aware of the record whether formally served or not. The point did not justify striking out.
Whether the striking-out application was filed within the mandatory 30-day window in the proviso to Rule 86
No - the application was filed outside 30 days and was therefore fatally defective, warranting striking out of the application itself.
The proviso to Rule 86 bars any application to strike out a notice or record of appeal brought after the expiry of thirty days from service. Following Tome v Attorney General and the line of authority therein, failure to comply with this mandatory provision renders the application incompetent unless leave is sought and obtained. The applicants neither filed within time nor sought leave, so the application failed.
Legal principles established
#- An application to strike out a notice of appeal or record of appeal under Rule 86 must be brought within thirty days of service; failure to comply renders the application fatally defective.
- Striking out an appeal is a draconian discretionary remedy resorted to only in plain and outright instances.
- Where an appellant properly applies for proceedings within 30 days and serves the application, the time certified by the registrar for preparation of proceedings is excluded in computing the 60-day period for instituting the appeal.
Court orders
#- 1.The applicants' notice of motion dated 19th May 2021 is struck out
- 2.Costs of the application are awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Rules 82, 84 and 90 of the Court of Appeal Rules, 2022 (application to strike out a record of appeal)
Relief refused
#Striking out the 1st respondent's appeal/record of appeal for being filed out of time
The 1st respondent obtained a certificate of delay and was entitled to rely on the proviso excluding the time taken to prepare proceedings; further, the striking-out application was filed out of time under the proviso to Rule 86
Striking out the record of appeal for being served out of time
The applicant was in all probability served, or at least aware of the record, and the striking-out application was itself filed outside the 30-day window in Rule 86
Costs
The application is struck out with costs to the 1st respondent.
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.
It is trite that parties are bound by the mandatory proviso to Rule 86, and the failure to comply with the same renders an application filed thereunder defective.
It is now a settled principle that striking out a pleading is a draconian act, which may only be resorted to in plain and outright instances. The power of this court to strike out an appeal is discretionary and is exercised based on the peculiar circumstances of each case.
We therefore find the application herein not only without merit but also fatally defective. The same is struck out with costs to the 1st respondent.
Issues in the judgment
#The judgment does not state the case title, appeal number or neutral citation in the excerpt provided; the coram appears only as initials at the end.
The judgment quotes Rule 84 but sets out what appears to be the Rule 84(1) proviso and sub-rule (2) content without complete sub-rule text, and the extract of Rule 86 contains typographical errors ('gas not been taken', 'withinn').
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mathinji v Gatungu & another (Civil Appeal (Application) E230 of 2024) [2026] KECA 655 (KLR)[2026] KECA 655 (KLR)25 Mar 2026
Cite this brief
#Cite this brief
Caselaw, "Sub-County Co-operative Officer, Turbo & Soy v Raiplywoods (K) Limited & 2 others (Civil Appeal 81 of 2020) [2024] KECA 303 (KLR)", Case Analysis (2024). null. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/303/eng@2024-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.