Mary Achieng Ngiela (suing As The Legal Administrator of Joseph Ngiela Mbori – Deceased) v Bernard Ouma Mboya & 1 other
The bottom line
#Kenya's Court of Appeal struck out a notice of appeal filed by non-parties, confirming that outsiders must first seek leave to join a case before appealing.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the application under Rule 86
The application, lodged 5 April 2023 after service of the notice of appeal on 10 March 2023, was within the 30-day window and therefore competently before the Court.
Rule 86 prohibits striking-out applications brought after expiry of 30 days from service of the notice or record of appeal. Service occurred on 10 March 2023, so the applicant had until 11 April 2023; the application filed 5/6 April 2023 fell within that period. The Court relied on its precedents confirming the mandatory nature of the proviso.
Locus standi of non-parties to lodge a notice of appeal
The respondents, who were never parties to the ELC suit and never sought to be enjoined, had no locus to lodge the notice of appeal; Rule 77 does not permit strangers to appeal, and the remedy for an affected non-party is to first seek leave to be enjoined.
The Court applied its definition of locus standi in Alfred Njau v City Council of Nairobi and distinguished the Migwalla/Onyuka line of cases, which concerned estate beneficiaries stepping into proceedings after deaths of parties. Here the respondents were aware of the proceedings - demonstrated by a Land Registrar's visitation and their filing a notice of appeal two days after judgment, the same day the defendant did - yet chose not to apply to be enjoined as interested parties. Their approach was lacklustre and undeserving of indulgence.
Legal principles established
#- A person who was not a party to proceedings and never sought to be enjoined cannot lodge a notice of appeal under Rule 77; a non-party whose rights are affected must first seek leave to be enjoined before appealing.
- Striking out a notice of appeal or appeal is a discretionary, draconian power to be exercised only in plain cases, on the peculiar circumstances of each case.
- An application to strike out a notice of appeal must be lodged within 30 days of service of the notice or record of appeal; failure to comply renders the application defective.
Court orders
#- 1.The respondents' Notice of Appeal dated 7th March 2023 is struck out
- On appeal from
- Environment and Land Court
- Homa Bay ELC Case No. 47 of 2021 (O.S) (formerly Migori ELC No. 851 of 2017 (OS))
- Jurisdiction invoked
- Rules 44, 47 & 86 of the Court of Appeal Rules, 2022 (inherent supervisory jurisdiction over notices of appeal lodged in the Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Achieng Ngiela (suing As The Legal Administrator of Joseph Ngiela Mbori – Deceased) v Bernard Ouma Mboya & 1 other", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/706/eng@2024-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.