Ali v Grain Industries Limited (Civil Application E066 of 2023) [2024] KECA 400 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether failure to serve the letter requesting proceedings deprives an appellant of the benefit of the proviso excluding the time taken to prepare proceedings
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.
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.
Whether the overriding objective under article 159 of the Constitution excuses non-compliance with the timelines in the Court of Appeal Rules
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.
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.
Whether timeliness of filing a Record of Appeal goes to jurisdiction
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.
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.
Legal principles established
#- 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
#- 1.The notice of motion dated July 29, 2023 is allowed
- 2.Mombasa Civil Appeal No. E043 of 2023 - Grain Industries Limited v Ismail Ahmed Ali is struck out with costs to the applicant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.