Agola v Musungu (Civil Appeal (Application) 75 of 2019) [2024] KECA 877 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal record filed past the 60-day deadline, confirming late filing without leave cannot be excused.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Record of Appeal was filed out of time without leave of the Court, taking into account the certificate of delay and the Court's vacation
- 2.What is the consequence of filing a Record of Appeal out of time without leave - specifically, whether such an appeal is competent
Key legal issues
#Computation of the 60-day period for filing a Record of Appeal under Rule 84(1), including exclusion of periods covered by a certificate of delay and the Court's vacation
The proceedings were ready on 30th December 2018 during the Court's vacation, so time began running on 13th January 2019 and the Record should have been filed by 14th March 2019; a Record filed on 30th April 2019 was out of time.
Rule 84(1) requires the Record of Appeal to be filed within 60 days of lodging the Notice of Appeal. The proviso excludes any period certified by the Registrar as expended in preparing and delivering proceedings. Because the proceedings became ready during the vacation, time ran from the end of the vacation on 12th January 2019, expiring 14th March 2019.
The consequence of filing a Record of Appeal out of time without leave
An appeal filed out of time without leave goes to jurisdiction and is not saved by Article 159; the Record must be struck out.
The Court adopted its earlier decision in Patrick Kiruja Kithinji v Victor Mugira Marete, holding that the Court has jurisdiction only over appeals filed within time or out of time with leave. Late filing is not a mere irregularity curable under the overriding objective in Article 159. The respondent admitted the delay and offered explanations (misplaced file, registry advice) that were unsupported by affidavit or documentary evidence, so no proper basis for the delay was laid.
Legal principles established
#- Whether or not an appeal is filed on time goes to the jurisdiction of the Court; an appeal filed out of time without leave is incompetent and cannot be cured under Article 159 of the Constitution.
- A Record of Appeal filed out of time and without leave of the Court must be struck out.
Court orders
#- 1.The Record of Appeal filed on 30th April 2019 out of time and without leave of the Court is struck out
- 2.Costs of the application are awarded to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court (Environment and Land Court)
- E.L.C Case No. 77 of 2009
- Jurisdiction invoked
- Court of Appeal Rules, Rule 84(1) and its proviso (appellate jurisdiction over record of appeal filed out of time without leave)
Relief refused
#The respondent's implicit plea to sustain the Record of Appeal despite being filed out of time (based on misplaced court file and registry advice to await the Registrar's directions)
No proper basis was laid for the delay; there was no affidavit sworn by registry staff confirming loss of the file or a letter evidencing the registry's refusal to receive the record on 6th April 2019
Costs
The Record of Appeal was ordered to be struck out with costs to the applicant: "the undeniable fate of the Record which was filed out of time without leave of the Court is to be struck out with costs."
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In our view whether or not an appeal is filed on time goes to the jurisdiction of this Court.
Consequently, we find that an appeal filed out of time is not curable under Article 159.
There is no afidavit on record sworn by registry stafi confirming that the file was lost by the registry or a letter addressing the refusal of the registry stafi refused to file the record on 6th April 2019 pending directions by the Registrar of the High Court.
the undeniable fate of the Record which was filed out of time without leave of the Court is to be struck out with costs. It is so ordered.
Issues in the judgment
#The judgment's terminology is internally confusing: the applicant challenging the appeal is described as 'the appellant', yet it was the respondent who lodged the notice of appeal and filed the Record of Appeal that was struck out. The closing paragraph states 'the appellant has not laid a proper basis' although it is the respondent's delay being excused.
Inconsistent dates within the judgment: the certificate of delay is said to have been signed on 1st March 2019, but the respondent's affidavit states 'The certificate of delay was signed on 1st March 2019 when the file was traced' while also stating the record was presented for filing on 6th April 2019 and the paragraph elsewhere says proceedings were received on '30th December 2018' versus '31st December 2018'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agola v Musungu (Civil Appeal (Application) 75 of 2019) [2024] KECA 877 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/877/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.