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Court of AppealPartially AllowedCivil Application (striking out motion) in relation to Mombasa Civil Appeal No. E043 of 2023· [2024] KECA 400 (KLR)

Ali v Grain Industries Limited (Civil Application E066 of 2023) [2024] KECA 400 (KLR)

Court of Appeal of Kenya
26 April 2024
3,098 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out Grain Industries' appeal because it missed filing deadlines and never served the required documents on the other side.

What this practically means

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Executive summary

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The applicant, Ismail Ahmed Ali, moved the Court of Appeal at Mombasa to strike out the Memorandum and Record of Appeal in Grain Industries Limited v Ismail Ahmed Ali (Mombasa Civil Appeal No. E043 of 2023) filed against a judgment of the Employment and Labour Relations Court delivered on May 13, 2022. The applicant complained that although the respondent lodged its Notice of Appeal within fourteen days, it served it out of time, never served the letter requesting proceedings, and filed and served the Memorandum and Record of Appeal approximately eight months out of time without seeking leave. The respondent argued that the delay was excused by the time taken to prepare proceedings, that the omissions were a curable technicality under article 159 of the Constitution, and that no prejudice had been demonstrated. The Court, Nyamweya, Laibuta and Odunga JJA, allowed the application. Relying on rule 84(2), it held that an appellant who does not serve the letter requesting proceedings cannot rely on the proviso excluding the period certified for preparing proceedings, so the Record of Appeal, filed in March 2023, was out of time. Timeliness goes to jurisdiction, per Patrick Kiruja Kithinji, and an appeal filed out of time without leave is for striking out. The Court held that the respondent's explanations and inaction could not cure the defect: such reasons belong in an extension-of-time application, and the Court's rules are not of cosmetic value. The appeal was struck out with costs to the applicant.

Key legal issues

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01

Whether failure to serve the letter requesting proceedings deprives an appellant of the benefit of the proviso excluding the time taken to prepare proceedings

Holding

Yes. A party who fails to file the Memorandum and Record of Appeal within 60 days can only validate the appeal by seeking extension of time under rule 4; the proviso excluding the certified period is available only where the letter requesting proceedings was served on the intended respondent.

Reasoning

Rule 84(2) expressly conditions entitlement to the proviso on the appellant's application for a copy of the proceedings being in writing and served on the respondent. The Court, following Joseph Ngwele Nduswa and Kenya Ironmongers, held that the respondent does not dispute failing to serve the request for proceedings, so the certified preparation period cannot be excluded and the Record of Appeal, filed in March 2023, was hopelessly out of time.

p. 4
02

Whether the overriding objective under article 159 of the Constitution excuses non-compliance with the timelines in the Court of Appeal Rules

Holding

No. Inaction after filing the Notice of Appeal cannot cure the omission; the rules are not of cosmetic value and unexplained delay in serving the Notice and Record of Appeal occasions prejudice and is inexcusable.

Reasoning

The Court adopted Daniel Nkirimpa Monirei: service of the Notice of Appeal alerts a party that the matter has been escalated, and failure to serve creates a false belief that the matter is concluded, occasioning prejudice. The respondent neither regularised the position nor sought leave; the Court held its rules exist to ensure orderly and predictable exercise of its mandate, so substantive justice arguments could not rescue an appeal filed out of time without leave.

p. 5
03

Whether timeliness of filing a Record of Appeal goes to jurisdiction

Holding

Yes. Whether an appeal is filed on time is a fundamental issue going to the jurisdiction of the Court, which can entertain only timely appeals or those filed out of time with leave.

Reasoning

Relying on Patrick Kiruja Kithinji v Victor Mugira Marete and Taib v Wekesa, the Court reaffirmed that jurisdiction is conferred by law and conditioned on compliance with the statutory timelines for institution of appeals. An appeal filed outside the 60-day period without leave of the Court is incompetent and, per Daniel Nkirimpa Monirei, is for striking out.

p. 3

Legal principles established

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  • An appeal must be instituted within 60 days of lodging the Notice of Appeal; the only exception is where the intending appellant, within thirty days of the decision, applied for a copy of the proceedings and served the request on the intended respondent. Failure to serve the letter bespeaking proceedings deprives the appellant of the benefit of the excluded period, and an appeal filed out of time without leave is for striking out.
  • Whether or not a Record of Appeal has been filed on time goes to the jurisdiction of the Court; the Court only has jurisdiction to entertain appeals filed within time or out of time with leave.
  • Reasons for non-compliance with the Court's timelines are relevant only in an application for extension of time and cannot cure the incompetence of an appeal filed out of time without leave.

Court orders

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  1. 1.The notice of motion dated July 29, 2023 is allowed
  2. 2.Mombasa Civil Appeal No. E043 of 2023 - Grain Industries Limited v Ismail Ahmed Ali is struck out with costs to the applicant

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 159
  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 77(1) & (2)
  • Court of Appeal RulesRule 79(1)
  • Court of Appeal RulesRule 81
  • Court of Appeal RulesRule 82
  • Court of Appeal RulesRule 84(1) and (2)
  • Court of Appeal RulesRules 85 and 86
  • Court of Appeal RulesRule 92

Cases cited (14)

  • Taib & another v Wekesa & another (Suing as the Legal Representative of the Estate of George Eliam Wekesa)
    Civil Application No. 41 of 2019 (2022) KECA 444 (KLR)
  • Mistry Premji Ganji (Investment) Limited v Kenya National Highways Authority
    (2019) eKLR
  • Karl Wehner Claasen v Commissioner of Lands & 4 others
    [2017] eKLR
  • Aron Kibiwot Chepris v Florence Chemonges
    [2018] eKLR
  • Kenya Human Rights Commission v Nubian Rights Forum & 17 others
    [2021] eKLR
  • Samuel Kuria v Mbugua Kimani
    [1997] eKLR
  • Mavloni Co. Ltd v Peter Gicheru Mungai
    [2013] eKLR
  • Ponangipalli Venkata Ramana Rao & Another v Dipit Premchand Chheda & 2 others
    [2021] eKLR
  • Joseph Ngwele Nduswa v Ahmed Abubakar & another
    Civil Appeal No. 287 of 1997 (UR)
  • Kenya Ironmongers Ltd. v Muhoroni Sugar Company Ltd.
    Civil Application No. Nai. 148 of 2000 (UR)
  • Daniel Nkirimpa Monirei v Sayialel ole Koilel & 4 others
    [2016] eKLR
  • John Mutai Mwangi & 26 others v Mwenja Ngure & 4 others
    [2016] eKLR
  • The Board of Trustees of Local Authorities Provident Fund & another v Kenya County Government Workers Union & 67 others
    Nrb Civil Application No. E248 of 2020
  • Patrick Kiruja Kithinji v Victor Mugira Marete
    [2015] eKLR
On appeal from
Employment and Labour Relations Court
Mombasa Civil Appeal No. E 043 of 2023 (Grain Industries Limited v Ismail Ahmed Ali)
Jurisdiction invoked
Appellate jurisdiction under the Appellate Jurisdiction Act and Rule 86 of the Court of Appeal Rules (application to strike out an appeal for failure to take an essential step within the prescribed time)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ali v Grain Industries Limited (Civil Application E066 of 2023) [2024] KECA 400 (KLR)", Case Analysis (2024). Civil Application (striking out motion) in relation to Mombasa Civil Appeal No. E043 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/400/eng@2024-04-26

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