Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedNot stated in the judgment (motion dated 7th September, 2022)· [2024] KECA 1028 (KLR)

Kamau & another v Waruingi & another (Civil Application E072 of 2022) [2024] KECA 1028 (KLR)

Court of Appeal of Kenya
12 April 2024
756 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

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

#
This was an unopposed notice of motion dated 7th September, 2022, brought by the applicants under Rules 75 and 77 of the Court of Appeal Rules (2010), seeking to strike out the respondents' notice of appeal with costs. The respondents' suit in the Environment and Land Court at Murang'a had been dismissed on 9th June, 2022. They lodged a notice of appeal on 22nd June, 2022 and served it on the applicants by email on 9th August, 2022 - well beyond the seven days prescribed by Rule 77 for service after lodging. The respondents neither filed a response to the motion nor appeared at the hearing, despite due service of a hearing notice, and did not seek any extension of time within which to serve the notice. The Court held that its procedural rules and timelines are not within the ambit of the general discretion under Article 159 of the Constitution on procedural technicalities; they exist to regulate the conduct of parties and accord fairness. Citing its earlier decision in Patrick Kiruja Kithinji vs Victor Mugira Marete and the Supreme Court's decision in Nicholas Kiptoo Arap Korir Salat, the Court reaffirmed that where a law prescribes a time for doing something, a party must seek extension of time once that time lapses. The application, having been filed within thirty days of service as required by Rule 86, was allowed: the notice of appeal dated 15th June, 2022 was struck out for contravening Rule 77, with costs to the applicants.

Key legal issues

#
01

Service of notice of appeal out of time under Rule 77

Holding

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.

Reasoning

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.

p. 2
02

Whether procedural timelines fall within the Article 159 discretion

Holding

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.

Reasoning

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.

p. 2

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. 1.The applicants' application to strike out the notice of appeal dated 15th June, 2022 is allowed for contravention of Rule 77
  2. 2.The applicants are awarded the costs of the application

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 159
  • Court of Appeal Rules, 2010Rule 75
  • Court of Appeal Rules, 2010Rule 77
  • Court of Appeal Rules, 2010Rule 86

Cases cited (2)

  • Patrick Kiruja Kithinji vs Victor Mugira Marete
    [2015] eKLR
  • Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
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.