Ladha & another v Ladha) & 3 others (Civil Appeal (Application) E020 of 2023) [2024] KECA 643 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the appellants served their appeal record months late without fixing the problem first.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the striking-out application
The application was competent as it was filed 19 days after service of the record, within the 30-day window.
Rule 84 requires a striking-out application to be brought within 30 days of service of the notice or record of appeal. The record was served on 23rd June 2023 and the motion dated 11th July 2023, being filed 19 days later, fell within the prescribed period, so the threshold competency objection was overcome.
Consequence of late service of the Record of appeal
The record was served approximately three months late in breach of rule 90, and without remedial steps prior to the motion, the Notice and Record of appeal were struck out.
Rule 90 mandatorily requires service of the record of appeal within seven days of lodging. The appellants admitted late service attributed to counsel's firm restructuring. Following Mukenya Ndunda v Crater Automobiles, the breach was not flagrant but neither were remedial steps taken, and the Court applied Mulama v EACC, striking out the record.
Legal principles established
#- An appeal record served outside the seven-day period prescribed by rule 90 is liable to be struck out where the delay is not remedied before a striking-out motion is brought
- The power to strike out an appeal is discretionary and exercised on the circumstances of each case
Court orders
#- 1.The Record of appeal dated 9th February 2023 and filed on 20th February 2023 is struck out
- 2.The Notice of appeal dated 17th June 2021 and filed on 18th June 2021 is struck out
- 3.Costs of the application to the applicants
- On appeal from
- High Court of Kenya
- Mombasa adverse possession suit (number not stated)
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act and rules 84 and 90 of the Court of Appeal Rules, 2010 (now rules 86 and 92(1) of the Court of Appeal Rules, 2022)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ladha & another v Ladha) & 3 others (Civil Appeal (Application) E020 of 2023) [2024] KECA 643 (KLR)", Case Analysis (2024). Civil Application at Mombasa (unnumbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/643/eng@2024-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.