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Court of AppealPartially AllowedNot stated in judgment· [2024] KECA 844 (KLR)

Amerisource Limited & another v Nation Media Group Limited (Civil Appeal (Application) 445 of 2019) [2024] KECA 844 (KLR)

Court of Appeal
12 July 2024
DMD. K. MusingaSKS. Gatembu KairuLAL. Achode
625 words in judgment
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AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal struck out an appeal filed months late, confirming that High Court permission to appeal does not extend the 14-day notice deadline.

What this practically means

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Executive summary

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This was an application (not a full appeal) in the Court of Appeal, Nairobi, under rules 75(2) and (4), 82, 83 and 84 of the Court of Appeal Rules, 2010, seeking to strike out the 1st appellant's notice of appeal filed on 19th September 2019 and the 2nd appellant's notice of appeal filed on 10th July 2019 as out of time. The impugned High Court order, made by Sergon, J on 9th November 2018, directed that the authors of certain documents be summoned to produce them as exhibits. Because that order was not appealable as of right, leave was required under Order 43 rule 1(3) of the Civil Procedure Rules. The High Court granted leave on 27th June 2019, and the 2nd appellant argued that time began to run only upon that grant. The Court of Appeal rejected this: leave of the High Court merely permitted the institution of an appeal; it did not extend, nor substitute for compliance with, the fourteen-day period fixed by rule 75(2) for filing a notice of appeal, which runs from delivery of the impugned order. The appellants never sought this Court's leave to appeal out of time, so the notices and the record of appeal were filed out of time and without leave. The appellants, though served, did not attend the hearing. The court allowed the application, struck out the appeal, and awarded costs to the applicant. Judgment was delivered at Nairobi on 12th July 2024 by Musinga, P, Gatembu Kairu and Achode, JJA, as a single judgment of the court.

Key legal issues

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01

Whether time for filing a notice of appeal began to run only upon grant of leave by the High Court

Holding

No. The fourteen-day period under rule 75(2) runs from delivery of the impugned order; the High Court's grant of leave did not extend time or dispense with the need for this Court's leave.

Reasoning

The order of 9th November 2018 summoning authors of documents to produce exhibits was not appealable as of right; under Order 43 rule 1(3) of the Civil Procedure Rules leave was required. The appellants never sought leave of the Court of Appeal to appeal out of time. The High Court could only permit institution of the appeal, not extend the time fixed by rule 75(2) for filing the notice. The notices of 10th July 2019 and 19th September 2019 were therefore filed months out of time and without leave, rendering both the notices and the record of appeal fatally defective.

p. 2
02

Whether the appeal should be struck out

Holding

Yes. Both the notices of appeal and the record of appeal, having been filed out of time and without leave, were struck out.

Reasoning

The application was brought under rules 75(2) and (4), 82, 83 and 84 of the Court of Appeal Rules, 2010. The notices and record were filed out of time and without leave of this Court. The appellants, though served with the hearing notice and an affidavit of service filed, did not attend the hearing. The applicant's application accordingly succeeded, with the consequence that the appeal was struck out and costs awarded to the applicant.

p. 2

Legal principles established

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  • Where an appeal lies only by leave, a notice of appeal must be filed within fourteen days of the impugned order and any extension requires leave of the Court of Appeal itself; leave granted by the High Court does not extend time for filing a notice of appeal in the Court of Appeal.
  • Notices of appeal and records of appeal filed out of time and without leave of the Court of Appeal are liable to be struck out on application under rules 82, 83 and 84 of the Court of Appeal Rules, 2010.

Court orders

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  1. 1.The applicant's notice of motion dated 23rd January 2020 is allowed
  2. 2.The appeal is struck out
  3. 3.Costs of the application to the applicant

Authorities

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Legislation

  • Court of Appeal Rules, 2010rule 75(2) and (4)
  • Court of Appeal Rules, 2010rules 82, 83 and 84
  • Civil Procedure RulesOrder 43 rule 1(3)
On appeal from
High Court
Not stated in judgment
Jurisdiction invoked
Rules 75(2) and (4), 82, 83 and 84 of the Court of Appeal Rules, 2010 (application to strike out notices and record of appeal filed out of time)

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, "Amerisource Limited & another v Nation Media Group Limited (Civil Appeal (Application) 445 of 2019) [2024] KECA 844 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/844/eng@2024-07-12

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