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Court of AppealStruck Outnull

Sub-County Co-operative Officer, Turbo & Soy v Raiplywoods (K) Limited & 2 others (Civil Appeal 81 of 2020) [2024] KECA 303 (KLR)

Court of Appeal of Kenya
22 March 2024
2,913 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Before the Court of Appeal at Nakuru (Sichale, Ochieng and Korir, JJ.A) was a notice of motion dated 19th May 2021 by the applicant, Roselyn Rae, seeking striking out of the 1st respondent's record of appeal on the grounds that it was filed out of time contrary to Rule 82 and served out of time contrary to Rule 90 of the Court of Appeal Rules. The applicant contended that the 1st respondent failed to serve the letter bespeaking proceedings, an essential step, and that the certificate of delay could not cure that default. The 1st respondent maintained that the notice of appeal and letter bespeaking proceedings were filed and served on 12th March 2019, that the delay was occasioned by the court in preparing the proceedings as certified by the certificate of delay dated 20th February 2020, and that service was effected on 19th March 2020 though the applicant refused to stamp the service copy. The court held that in all probability the letter bespeaking proceedings was served; that the 1st respondent, having applied for proceedings within 30 days and obtained a certificate of delay, was entitled to exclude the certified period under the proviso to Rule 84(1), so the record was filed within time; and that the applicant must have been aware of the record notwithstanding the service dispute. Decisively, the court found the striking-out application itself barred by the mandatory proviso to Rule 86, which requires such applications to be brought within thirty days of service. Following Tome v Attorney General and the line of authority cited therein, the court struck out the application as without merit and fatally defective, with costs to the 1st respondent, leaving the appeal to proceed to hearing.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 1st respondent's record of appeal ought to be struck out for being filed out of time
  2. 2.Whether the 1st respondent's record of appeal ought to be struck out for being served out of time

Key legal issues

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01

Whether the record of appeal was filed out of time

Holding

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.

Reasoning

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.

p. 5
02

Whether the record of appeal was served out of time contrary to Rule 90

Holding

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.

Reasoning

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.

p. 6
03

Whether the striking-out application was filed within the mandatory 30-day window in the proviso to Rule 86

Holding

No - the application was filed outside 30 days and was therefore fatally defective, warranting striking out of the application itself.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The applicants' notice of motion dated 19th May 2021 is struck out
  2. 2.Costs of the application are awarded to the 1st respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
Jurisdiction invoked
Rules 82, 84 and 90 of the Court of Appeal Rules, 2022 (application to strike out a record of appeal)

Relief refused

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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

p. 6

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

p. 6

Costs

The application is struck out with costs to the 1st respondent.

Quotable passages

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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.
p. 6Mandatory 30-day time limit for striking-out applications under Rule 86
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.
p. 6Discretionary and exceptional nature of striking out an appeal
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.
p. 6Final orders - disposition striking out the application

Issues in the judgment

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minor

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.

minor

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.