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Court of AppealDismissedCivil Application No. E047 of 2023 (lead file), consolidated with Civil Application No. E048 of 2023· [2024] KECA 700 (KLR)

Kandie & another v Kapkoros & another (Civil Application E047 of 2023 & E048 of 2024 (Consolidated)) [2024] KECA 700 (KLR)

Court of Appeal of Kenya
7 June 2024
SKS. ole KANTAIFOF. OCHIENGWKW. KORIR
929 words in judgment
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The bottom line

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The Court of Appeal struck out an appeal notice filed 15 days late, confirming that strict deadlines for filing and serving notices of appeal in Kenya are non-negotiable.

What this practically means

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Executive summary

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This Court of Appeal decision arises from two cross-applications, Civil Applications Nos. E047 and E048 of 2023, consolidated with E047 as the lead file, both arising out of the judgment of Nyakundi, J. delivered at Eldoret on 17th July 2023 in Eldoret Succession Cause No. 145 of 2000 between Philomena Kandie as petitioner and Elizabeth Kimoi Jacob Kapkoros as objector. Philomena sought a stay of execution and further proceedings pending an intended appeal. Elizabeth, in turn, sought the striking out of Philomena's notice of appeal dated 29th August 2023 on the ground that it was filed some 29 days after judgment, well beyond the 14 days allowed by rule 77 of the Court of Appeal Rules, and served out of time contrary to rule 79. Counsel for Philomena conceded that no application for extension of time had been made. The court noted that the notice of appeal had been received by Elizabeth's advocates under protest with an express endorsement recording out-of-time service, yet Philomena's lawyers took no remedial steps. Holding the notice of appeal incompetent, the court struck it out with costs to Elizabeth. The striking out left Philomena's stay application without foundation, and it too was struck out. The judgment is a single, unanimous decision of the bench of Kantai, Ochieng and Korir, JJ.A. It affirms the binding discipline that strict compliance with the time rules for filing and serving notices of appeal is a precondition to a competent appeal.

Key legal issues

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01

Timeliness and competence of the notice of appeal

Holding

The notice of appeal dated 29th August 2023 was filed 29 days after judgment delivered on 17th July 2023, contrary to rule 77, and was served out of time contrary to rule 79; no application for extension of time had been made, so the notice was incompetent and was struck out.

Reasoning

The court found it common ground that judgment was delivered on 17th July 2023. Rule 77 requires a notice of appeal within 14 days and rule 79 requires service within 7 days of lodging. Counsel for Philomena conceded no extension of time had been sought. Service on 15th September 2023 was received under protest with an express endorsement noting out-of-time service, putting the lawyers on notice, yet no remedial action was taken. The notice was therefore incompetent.

p. 3
02

Fate of the stay application dependent on the incompetent notice

Holding

Philomena's Motion for stay of execution and further proceedings pending the intended appeal was incompetent because its foundation, the notice of appeal, had been struck out.

Reasoning

The stay application in the lead file was brought in support of an intended appeal. Once the notice of appeal was struck out as incompetent, there was no valid appeal to stay execution pending. The court accordingly struck out the Motion as well, without reaching the substantive merits of the stay criteria under rule 5(2)(b).

p. 3

Legal principles established

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  • A notice of appeal must be lodged within 14 days of the delivery of the judgment appealed against and served on affected parties within 7 days of lodging; a notice filed and served out of time without an extension of time is incompetent and liable to be struck out, and any application premised on it falls with it.
  • An application for stay pending appeal that rests on an incompetent notice of appeal is itself incompetent and must be struck out.

Court orders

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  1. 1.Notice of appeal filed by Philomena is struck out with costs to Elizabeth
  2. 2.Philomena's Motion in Civil Application No. E047 of 2023 (stay of execution and further proceedings pending intended appeal) is struck out

Authorities

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Legislation

  • Court of Appeal RulesRule 5(1)(2)(b) (sic)
  • Court of Appeal RulesRule 44
  • Court of Appeal RulesRule 77 (and 77(2))
  • Court of Appeal RulesRule 79 (and 79(1))
  • Court of Appeal RulesRule 86(b)
  • Court of Appeal RulesRule 87
  • Appellate Jurisdiction ActSections 3A, 3B and 5
  • Constitution of Kenyavarious Articles (not specified)
On appeal from
High Court of Kenya at Eldoret
Eldoret Succession Cause No. 145 of 2000
Jurisdiction invoked
Rule 5(1)(2)(b) (sic) of the Court of Appeal Rules as read with Sections 3A, 3B and 5 of the Appellate Jurisdiction Act; for Elizabeth's Motion, rules 44, 77(2), 79(1), 86(b) and 87 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kandie & another v Kapkoros & another (Civil Application E047 of 2023 & E048 of 2024 (Consolidated)) [2024] KECA 700 (KLR)", Case Analysis (2024). Civil Application No. E047 of 2023 (lead file), consolidated with Civil Application No. E048 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/700/eng@2024-06-07

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