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Court of AppealDismissedNot stated in the judgment (arising from Migori ELC No. 602 of 2017 (O.S.))

Otwala & another v Leo (Sued in His Capacity as Personal Representative of the Estate of Paskalia Awuor Omondi) (Civil Appeal (Application) E113 of 2023) [2024] KECA 789 (KLR)

Court of Appeal of Kenya
5 July 2024
HOHannah OkwenguHOH. A. OmondiJNJoel Ngugi
1,230 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed an attempt to strike out a notice of appeal because the application was filed more than thirty days after service.

What this practically means

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Executive summary

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This was a Notice of Motion dated 5th September 2023, brought under rules 77, 82 and 84 of the Court of Appeal Rules 2010 (now rules 79, 84 and 86 of the 2022 Rules), in which the applicants sought to strike out a notice of appeal dated 25th March 2022 and lodged on 4th April 2022. The notice of appeal was filed by the respondent, John Odhiambo Leo, against a judgment of the Environment and Land Court at Migori in ELC No. 602 of 2017 (O.S.), in which judgment had been entered against him. The applicants argued that the notice was never served on them, that it was filed out of the seven-day period prescribed by Rule 77(1), and that no record of appeal had been filed over a year later. The respondent countered that the notice was served by EMS courier, supported by a certificate of posting, and was also attached to an application for stay dated 19th June 2023 that was served on the applicants. The Court, in a single judgment delivered at Kisumu on 5th July 2024 by Okwengu, Omondi and Ngugi JJA, held that the decisive issue was the competency of the striking-out application itself. Under the proviso to Rule 86, such an application must be brought within thirty days of service of the notice of appeal. Since the applicants admitted receiving the notice attached to the stay application of 19th June 2023, their application filed on 5th September 2023 was out of time and no leave to file out of time was sought. Applying its own precedents, the Court dismissed the application as a non-starter both technically and on merit, with costs of the application ordered to abide the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants satisfied the requirements for striking out the notice of appeal dated 25th March 2022, including alleged non-service and late filing
  2. 2.Whether the application to strike out the notice of appeal was competent, having regard to the proviso to Rule 86 requiring such applications to be brought within thirty days of service of the notice of appeal

Key legal issues

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01

Time limit under the proviso to Rule 86 for applications to strike out a notice of appeal

Holding

The application, filed on 5th September 2023, was out of time because the notice of appeal was served on the applicants on or about 19th June 2023 when the application for stay attaching it was served; no leave to file out of time was sought.

Reasoning

Rule 86 permits a person affected by an appeal to apply at any time to strike out a notice of appeal, but the proviso bars such an application more than thirty days after service of the notice or record of appeal. The applicants admitted the notice was attached to the stay application of 19th June 2023, yet filed the striking-out application on 5th September 2023. The court held this violated the proviso, rendering the application incompetent both technically and on merit, citing binding precedent of the Court.

p. 3
02

Nature of the power to strike out an appeal

Holding

The power to strike out an appeal is discretionary, exercised on the peculiar circumstances of each case, and striking out is a draconian remedy confined to plain cases.

Reasoning

The court acknowledged that striking out a pleading is draconian and may only be resorted to in plain cases, and that the power is discretionary and fact-specific. It framed the main issue as the competency of the appeal, noting the certificate of posting supporting the respondent's claim that the notice was sent by EMS courier. Nonetheless, competency of the striking-out application itself was determined by the Rule 86 proviso.

p. 2

Legal principles established

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  • An application to strike out a notice of appeal or an appeal cannot be brought after the expiry of thirty days from the date of service of the notice of appeal or record of appeal; failure to comply renders the application fatally defective.
  • Parties are bound by the mandatory nature of the proviso to Rule 84 of the Court of Appeal Rules; failure to comply renders an application filed thereunder defective.
  • The power to strike out an appeal is discretionary and is exercised on the peculiar circumstances of each case; striking out a pleading is a draconian act resorted to only in plain cases.

Court orders

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  1. 1.The Notice of Motion dated 5th September 2023 seeking to strike out the notice of appeal dated 25th March 2022 is dismissed
  2. 2.Costs of the application shall abide the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HO
majority

Wrote the judgment

HO
majority

Wrote the judgment

JN
majority

Wrote the judgment

On appeal from
Environment and Land Court
Migori ELC No. 602 of 2017 (O.S.)
Jurisdiction invoked
Rules 77, 82 and 84 of the Court of Appeal Rules 2010 (now Rules 79, 84 and 86 of the Court of Appeal Rules 2022) - inherent appellate jurisdiction to strike out a notice of appeal under Rule 86

Relief refused

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Striking out of the notice of appeal dated 25th March 2022

The application was filed outside the 30-day window prescribed by the proviso to Rule 86, measured from service of the notice of appeal on or about 19th June 2023, and was therefore both technically and meritoriously a non-starter

p. 3

Costs

Costs of the application shall abide the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

From the history of activities, we are satisfied that the applicants have not fulfilled the proviso to Rule 86 of this Court's Rules, and as such the application is a non-starter both technically and on merit.
p. 3Incompetence of out-of-time striking-out application - final disposition
Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days after the date of service of the notice of appeal or record of appeal, as the case may be.
p. 3Proviso to Rule 86 - statutory time bar
striking out a pleading is a draconian act, which may only be resorted to in plain cases
p. 2Draconian nature of striking out
The upshot is that the application is dismissed. Costs of the application shall abide the appeal.
p. 3Final orders and costs

Issues in the judgment

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minor

The full names of the applicants are not disclosed in the judgment; they are identified only through their advocate on record, Ezra Odondi Awino, and the underlying suit Migori ELC No. 602 of 2017 (O.S.).

minor

The judgment does not state the case number of the application before the Court of Appeal, and the respondent's advocate's firm is inconsistently rendered as 'Oguttu Mboya & Company Advocates' and 'M/s Tom Mboya & Company Advocates'.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Otwala & another v Leo (Sued in His Capacity as Personal Representative of the Estate of Paskalia Awuor Omondi) (Civil Appeal (Application) E113 of 2023) [2024] KECA 789 (KLR)", Case Analysis (2024). Not stated in the judgment (arising from Migori ELC No. 602 of 2017 (O.S.)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/789/eng@2024-07-05

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