JMM v MNN (Civil Appeal (Application) E753 of 2022) [2024] KECA 591 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal filed late, confirming that blaming your lawyer will not excuse missed appeal deadlines.
What this practically means
#Executive summary
#Key legal issues
#Mandatory nature of rule 84(1) timelines for lodging a record of appeal
Rule 84(1) is mandatory; a record of appeal filed 60 days after the notice of appeal, without extension of time or a valid certificate of delay, is liable to be struck out.
The timelines are intentional and purposeful, ensuring timely, just, efficient and cost-effective dispensation of justice. The exception applies only where the appellant applied for copies of proceedings within 30 days in writing and served the application on the respondent under rule 84(2). The appellant did neither, so he cannot rely on the proviso, and rules 85 and 86 consequently come into play.
Mistake of counsel as excuse for procedural non-compliance
A litigant cannot escape the consequences of non-compliance by blaming counsel; parties must show interest in and follow up their cases.
If mistake of counsel excused non-compliance, the Rules would be reduced to hollow aspirations rather than statutory commands. Responsibility to comply rests on litigants; counsel are mere handlers whose technical skills advance the principal's goals. The familiar plea of mistake of counsel therefore fails in the circumstances of this case.
Timeliness of an application to strike out a notice of appeal
An application to strike out a notice of appeal must be made within 30 days of service; a motion filed twelve-and-a-half months later is incompetent.
The proviso to rule 86 prescribes the 30-day window. The respondent's Motion dated 14th November 2022, filed after the notice was served on 3rd September 2021, came far outside that window and was struck out with costs to the appellant, although the later Motion to strike out the record of appeal, filed within 30 days of service of the record, succeeded.
Legal principles established
#- A record of appeal must be lodged within 60 days of the notice of appeal; the proviso excluding time applies only where the application for proceedings was made in writing within 30 days and a copy served on the respondent under rule 84(2).
- An application to strike out a notice of appeal under the proviso to rule 86 must be made within 30 days of service of the notice of appeal; one filed late is incompetent.
- Non-compliance with the Court's mandatory procedural timelines is not excused by blaming a mistake of counsel; litigants bear responsibility for their cases.
Court orders
#- 1.The respondent's Motion dated 14th November 2022 seeking to strike out the notice of appeal is struck out with costs to the appellant as incompetent, having been filed out of the 30-day period under the proviso to rule 86
- 2.The respondent's Motion dated 2nd December 2022 striking out the record of appeal is allowed
- 3.The appeal is deemed as withdrawn pursuant to rule 85 of the Court of Appeal Rules
- 4.Costs of the Motion and of the appeal are borne by the appellant
- On appeal from
- High Court of Kenya at Nairobi (Family Division)
- Nairobi High Court Misc. App. No. E024 of 2021
- Jurisdiction invoked
- Court of Appeal Rules, 2010 (rules 4, 82, 84, 85, 86), on appeal from the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JMM v MNN (Civil Appeal (Application) E753 of 2022) [2024] KECA 591 (KLR)", Case Analysis (2024). Civil Appeal (and Notice of Motion) arising from Nairobi High Court Misc. App. No. E024 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/591/eng@2024-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.