Kamau & another v Waruingi & another (Civil Application E072 of 2022) [2024] KECA 1028 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a notice of appeal served months late, confirming strict appeal timelines cannot be ignored without a formal extension of time.
What this practically means
#Executive summary
#Key legal issues
#Service of notice of appeal out of time under Rule 77
The notice of appeal lodged on 22nd June, 2022 but served on 9th August, 2022 was served outside the seven-day window in Rule 77, and the respondents neither sought nor obtained an extension of time; the notice was therefore struck out.
Rule 77 requires service of a copy of the notice of appeal on all persons directly affected within seven days of lodging. The ELC judgment was delivered on 9th June, 2022; the notice was lodged on 22nd June, 2022 and served on 9th August, 2022, plainly outside the prescribed period. No application for extension of time was made, so the non-compliance could not be excused and the applicants' application, brought within the Rule 86 window, had to succeed.
Whether procedural timelines fall within the Article 159 discretion
The rules and timelines of the Court of Appeal are not within the ambit of the general discretion under Article 159 of the Constitution regarding procedural technicalities; they exist to regulate the conduct of parties and accord fairness.
Relying on its prior decision in Patrick Kiruja Kithinji vs Victor Mugira Marete, the Court held that its procedural rules and timelines stand outside the Article 159(2)(d) 'overriding objective' discretion. Parties who fail to comply with a mandatory timeline must apply for extension of time; they cannot simply ignore the rule and expect the Court to overlook the default. This aligns with the Supreme Court's position in the Salat case on compliance with prescribed time limits.
Legal principles established
#- The timelines of the Court of Appeal Rules, including the seven-day period for serving a notice of appeal, are not subject to the general discretion under Article 159 of the Constitution and must be complied with or extended by the Court.
- Where a law or rule prescribes the time within which something must be done, a party must seek extension of time once that time lapses; non-compliance without such extension renders the step liable to be struck out.
- A notice of appeal served out of time under Rule 77, with no application for extension of time, will be struck out on an application brought within the period prescribed by Rule 86.
Court orders
#- 1.The applicants' application to strike out the notice of appeal dated 15th June, 2022 is allowed for contravention of Rule 77
- 2.The applicants are awarded the costs of the application
- On appeal from
- Environment and Land Court at Murang'a
- Jurisdiction invoked
- Rules 75 and 77 of the Court of Appeal Rules (2010)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau & another v Waruingi & another (Civil Application E072 of 2022) [2024] KECA 1028 (KLR)", Case Analysis (2024). Not stated in the judgment (motion dated 7th September, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1028/eng@2024-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.