Wahiu & 7 others v Magereza Savings and Credit Cooperative Society Limited (Civil Appeal (Application) 98 of 2019) [2024] KECA 430 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you only have thirty days to apply to strike out an appeal's record, and late applications fail automatically.
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 respondent's application to strike out the appellants' Notice of Appeal and Record of Appeal, filed outside the thirty-day period prescribed by the proviso to Rule 86 of the Court of Appeal Rules, is competent
- 2.Whether the Court of Appeal has jurisdiction to entertain an appeal from a decision of the High Court in an appeal from the Co-operative Tribunal, given Section 81(3) of the Co-operative Societies Act
Key legal issues
#Timeliness of an application under Rule 84 (now Rule 86) to strike out an appeal
The application was incompetent because it was filed and served outside the thirty-day period fixed by the proviso to Rule 86, which admits of no discretion, and it was therefore struck out.
The Court adopted its earlier decision in Joyce Bochere Nyamweya v Jemima Nyaboke Nyamweya, where an identically late striking-out application was held incompetent. The proviso to Rule 86 is framed in mandatory terms; the Court has no discretion to extend or overlook the time frame. A late striking-out application is an afterthought and a non-starter. The present application, filed after the thirty days had lapsed, had to suffer the same fate.
Jurisdiction to entertain an appeal from the High Court in an appeal from the Co-operative Tribunal
The Court did not decide the jurisdictional question at this stage; it struck out the application and left the question of the appeal's competence to be argued at the hearing of the appeal under Rule 107(b).
The respondent argued that under Section 81(3) of the Co-operative Societies Act the High Court's decision is final, so no appeal lies to the Court of Appeal. The appellants countered that Article 164(3) of the Constitution overrides that statutory bar. Because the striking-out application was itself incompetent for lateness, the Court deferred the jurisdictional challenge, permitting the parties to address competence during the hearing of the appeal.
Legal principles established
#- The proviso to Rule 86 of the Court of Appeal Rules requiring an application to strike out a notice or record of appeal to be brought within thirty days of service is mandatory, and an application filed outside that period is incompetent and a non-starter.
- An application under Rule 86 brought after the expiry of thirty days from service of the notice or record of appeal is an afterthought and must be dismissed.
Court orders
#- 1.The respondent's Notice of Motion dated 31st May 2019 seeking to strike out the appellants' Notice of Appeal and Record of Appeal is struck out
- 2.Costs of the application are awarded to the appellants
- 3.Under Rule 107(b) of the Court of Appeal Rules, the parties are at liberty during the hearing of the appeal to address the Court on the competence of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 84 (now Rule 86) of the Court of Appeal Rules and Section 81(3) of the Co-operative Societies Act; the appellants invoked Article 164(3) of the Constitution
Relief refused
#The respondent's application to strike out the Notice of Appeal dated 22nd June 2018 and the Memorandum and Record of Appeal dated 15th March 2019
The application was brought outside the thirty-day period prescribed by the proviso to Rule 86, which is mandatory and leaves the Court no discretion
Costs
The application was struck out with costs to the appellants.
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.
The above proviso is couched in mandatory terms and we have no discretion to second guess what was intended by the framers of the Rules when they gave a time frame.
The rule is mandatory and an application brought outside the thirty-day period properly qualifies to be seen as an afterthought.
The present application must sufier the same fate. It is accordingly struck out with costs to the appellants.
the parties will be at liberty during the hearing of the appeal to address the Court on the competence of the appeal.
Issues in the judgment
#The judgment does not state the appeal number, the name of the High Court judge appealed from, the date of the High Court decision, or the number of appellants, limiting identification of the case and the decision below.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wahiu & 7 others v Magereza Savings and Credit Cooperative Society Limited (Civil Appeal (Application) 98 of 2019) [2024] KECA 430 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/430/eng@2024-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.