China Tech International Corp v Sakima Investment Sarl (Civil Application E070 of 2023) [2024] KECA 543 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a late-served notice of appeal, confirming that missing the seven-day service deadline can kill an appeal outright.
What this practically means
#Executive summary
#Key legal issues
#Service of notice of appeal out of time under rule 79(1)
The notice of appeal served ten days beyond the seven-day period under rule 79(1) was liable to be struck out on an application under rule 86.
Rule 79(1) requires an intended appellant to serve copies of the notice of appeal on all persons directly affected before or within seven days after lodging the notice. The respondent served the notice out of time on 11th August 2023, ten days late. The applicant's rule 86 application, filed within thirty days of service, was competent, and no reply, submissions or appearance came from the respondent despite due service.
Timeliness of the rule 86 application
The Motion filed on 17th August 2023, six days after service of the notice of appeal, satisfied the proviso to rule 86 requiring application within thirty days of service.
Rule 86 permits an application to strike out at any time before or after institution of the appeal, provided it is not brought after the expiry of thirty days from the date of service of the notice of appeal or record of appeal. The applicant's Motion was filed on 17th August 2023, only six days after service on 11th August 2023, and was therefore well within time.
Legal principles established
#- A notice of appeal served out of the seven-day period prescribed by rule 79(1) may be struck out on application under rule 86.
- The timelines in the Court of Appeal Rules are mandatory and non-compliance carries consequences.
Court orders
#- 1.The respondent's notice of appeal dated 25th July 2023 is struck out
- 2.Costs of the application awarded to the applicant
- On appeal from
- High Court of Kenya at Mombasa
- HC Misc. App. No. 144 of 2023
- Jurisdiction invoked
- Rule 86 of the Court of Appeal Rules, 2022 (application to strike out a notice of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "China Tech International Corp v Sakima Investment Sarl (Civil Application E070 of 2023) [2024] KECA 543 (KLR)", Case Analysis (2024). Civil Application (Motion) arising from HC Misc. App. No. 144 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/543/eng@2024-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.