Munguti & another v Simiyu & another (Suing as administrators of the Estate of Frank Mwasi Mwabaga (Deceased) (Civil Appeal (Application) E039 of 2023) [2024] KECA 340 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a late attempt to strike out an appeal because it was filed months past the strict 30-day deadline, confirming that deadline is non-negotiable without prior leave.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether or not the application herein was filed within the stipulated timelines
- 2.if so, whether or not the notice of appeal ought to be deemed as withdrawn, and the record of appeal struck out
Key legal issues
#Timeliness of the application under the proviso to rule 86
The application was filed about 9 months after service of the notice of appeal, far beyond the 30-day limit, and was therefore defective and incompetent.
The proviso to rule 86 bars any application to strike out a notice of appeal or an appeal brought more than thirty days after service of the notice or record of appeal. The notice was served on 21st October 2022 and the application was dated 21st July 2023. The court, following its own precedents, held the mandatory proviso binds parties and non-compliance is fatal. No leave to file out of time had been sought.
Alleged irregularity of the certificate of delay
The court declined to pronounce on the regularity of the certificate of delay in the absence of evidence that the respondents misled the Deputy Registrar, who was not a party to the application.
The applicants alleged the Deputy Registrar was misled into issuing the certificate of delay. The court found no material demonstrating this, noted the Deputy Registrar was not a party and had not been called to answer the allegations, and held the court cannot make presumptions about the certificate's regularity.
Whether filing for review waived the right of appeal
The court declined to determine this question, holding it is a matter for the main appeal.
The applicants argued that by pursuing review of the impugned judgment the respondents waived their right of appeal. The court found this could not be determined on an interlocutory striking-out application and deferred it to the substantive appeal.
Legal principles established
#- An application to strike out a notice of appeal or an appeal must be brought within 30 days of service of the notice of appeal or record of appeal; non-compliance renders the application fatally defective and incompetent.
- An application to strike out a notice of appeal brought after 30 days from service is incompetent unless leave to file out of time is first sought and obtained.
Court orders
#- 1.The application dated July 21, 2023 was dismissed as filed out of time, fatally defective and incompetent
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Inherent/appellate jurisdiction under rules 33, 44, 45, 84, 85 and 86 of the Court of Appeal Rules, 2022 and Order 45 of the Civil Procedure Rules
Relief refused
#Deeming the notice of appeal dated October 17, 2022 as withdrawn under rule 85
The application was filed out of time, more than 30 days after service of the notice of appeal, and was therefore fatally defective and incompetent
Declaration that the record of appeal dated July 4, 2023 was incompetent for want of a notice of appeal and its striking out with costs
The same fate befell the application as it was time-barred under the proviso to rule 86; the court also found no material showing the Deputy Registrar was misled in issuing the certificate of delay
Costs
The application is hereby dismissed with costs to the respondents.
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.
In the result, we find that the application dated July 21, 2023 was filed out of time. It is therefore fatally defective and incompetent. The application is hereby dismissed with costs to the respondents.
The court cannot make any presumptions, leave alone a considered determination on the regularity or otherwise of the said certificate.
The principle of striking out an appeal is a draconian act that may only be resorted to in plain and outright instances.
Issues in the judgment
#The judgment does not name the actual litigating parties in its title/coram; only the counsel (Anne Halwenge Odwa for applicants, Abigael Chebet Ngala for respondents) are identified, and the underlying High Court case number is not given.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munguti & another v Simiyu & another (Suing as administrators of the Estate of Frank Mwasi Mwabaga (Deceased) (Civil Appeal (Application) E039 of 2023) [2024] KECA 340 (KLR)", Case Analysis (2024). Notice of Motion dated July 21, 2023 (Court of Appeal, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/340/eng@2024-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.