Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment

Kang'ethe & 5 others v Ng’ng’a; Kang'ethe & 11 others (Proposed Objectors) (Civil Application E043 of 2024) [2024] KECA 630 (KLR)

Court of Appeal of Kenya
28 May 2024
Mohamed Abdulahi WarsameM. Warsame
289 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal dismissed an application to file a late appeal because the applicants never filed a Notice of Appeal first.

What this practically means

#

Executive summary

#
This is a single-judge ruling of the Court of Appeal at Nakuru, delivered by M. Warsame, JA, on 28th May 2024, on a Notice of Motion dated 20th March 2024. The proposed appellants sought two prayers: leave to appeal out of time against a Ruling delivered on 11th December 2023, and an order admitting their draft Memorandum of Appeal out of time and deeming it duly filed upon payment of the requisite court fees. The court held that the appellate process is underpinned by statutes, Rules and Procedures, and that a party cannot set their own rules and practices and expect to benefit from them. The first step in an appeal is to file a Notice of Appeal within the stipulated period, or to seek leave to file it out of time. The applicants had done neither: they sought to file an appeal out of time without any Notice of Appeal or extension in respect of it. The court characterised this as putting the cart before the horse - an absurdity unknown to the Rules, Procedures and Practices, and an attempt to overturn the set out Rules and Procedures. The application was found to be incompetent and an outright abuse of the court process. It was dismissed with costs to the Respondent. No authorities were cited and no decision below was disturbed; the ruling binds litigants and lower courts to the requirement that a Notice of Appeal, or leave for its late filing, must precede any application for extension of time to file an appeal.

Key legal issues

#
01

Whether leave to appeal out of time can be granted where no Notice of Appeal was filed and no leave for its late filing was sought

Holding

No. The application inverts the prescribed procedure and is incompetent and an abuse of the court process.

Reasoning

The appellate process is underpinned by statutes, Rules and Procedures, and parties must play within the set out procedures, rules and practices. The first step in an appeal is filing a Notice of Appeal within the stipulated period or seeking leave to file it out of time. Seeking extension of time to file an appeal without ever filing a Notice of Appeal, or seeking leave for its late filing, is to put the cart before the horse - an absurdity unknown to the Rules, Procedures and Practices, and an attempt to overturn the set out Rules and Procedures. The application was therefore dismissed with costs.

p. 2

Legal principles established

#
  • A party must follow the prescribed appellate procedure: the first step is to file a Notice of Appeal within the stipulated period, or seek leave to file it out of time, before seeking extension of time to file the appeal itself.
  • A party cannot set their own rules and practice in appellate procedure and expect to benefit from them; an application to file an appeal out of time without a Notice of Appeal or leave therefor is incompetent and an abuse of process.

Court orders

#
  1. 1.The Notice of Motion dated 20th March 2024 is dismissed with costs to the Respondent
On appeal from
null
null
Jurisdiction invoked
Inherent jurisdiction and the Court of Appeal Rules governing extension of time to appeal against the Ruling delivered on 11th December 2023

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kang'ethe & 5 others v Ng’ng’a; Kang'ethe & 11 others (Proposed Objectors) (Civil Application E043 of 2024) [2024] KECA 630 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/630/eng@2024-05-28

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