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Court of AppealDismissedNot stated in the judgment· [2024] KECA 1029 (KLR)

Mathingira Wholesalers Company Limited v Lucy Mwai and Company Advocates (Civil Application E027 of 2021) [2024] KECA 1029 (KLR)

Court of Appeal
24 May 2024
WKW. KaranjaJMJamila MohammedLKL. Kimaru
2,116 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed a bid to strike out a late notice of appeal because the attacker itself missed the mandatory 30-day deadline.

What this practically means

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Executive summary

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This was an interlocutory application, not a full appeal, in which Mathingira Wholesalers Company Ltd sought to strike out a notice of appeal filed by Lucy Mwai and Company Advocates against an ELC ruling delivered on 10th February 2021. The applicant argued that the notice of appeal was lodged out of time and that no extension of time had been sought or granted, relying on Salat and other authorities. The respondent conceded the notice was filed late due to an arithmetical error in computing calendar days, but urged that the delay of a day was inadvertent and that the appeal should be heard on its merits. The Court of Appeal, however, identified a fatal threshold defect in the applicant's own motion: under the proviso to Rule 86 (formerly Rule 84), an application to strike out a notice of appeal must be brought within thirty days of service of the notice. Service was effected on 2nd March 2021 but the motion was lodged on 6th April 2021, four days outside the period, and no leave to file out of time was sought or obtained. Relying on its earlier decision in Salama Beach Hotel Ltd v Kenyariri & Associates Advocates, which followed Joyce Bochere Nyamweya, William Mwangi Nguruki and Michael Mwalo, the Court held that the timelines in the proviso are mandatory and bind both litigants and the court, and that a party caught by lapse of time should seek extension under Rule 4. The application was accordingly dismissed, with each party bearing its own costs. The notice of appeal therefore survives, subject to any extension-of-time application. The decision binds lower courts and parties to strict observance of the thirty-day window in Rule 86.

Key legal issues

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Compliance with the proviso to Rule 86 (formerly Rule 84) on the time for bringing an application to strike out a notice of appeal

Holding

The application, filed four days outside the thirty-day period and without leave, offends Rule 86 and must be dismissed

Reasoning

The court applied its earlier decision in Salama Beach Hotel Ltd v Kenyariri & Associates Advocates, which itself followed Joyce Bochere Nyamweya and William Mwangi Nguruki, holding that the timelines in the proviso to Rule 84 (now 86) are mandatory and bind both court and litigants. A party caught by lapse of time must file an application for extension of time under Rule 4. Since service was effected on 2nd March 2021 and the motion was lodged on 6th April 2021, four days late and without leave, the application was incompetent and had to fail.

p. 4

Legal principles established

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  • An application to strike out a notice of appeal or an appeal must be brought within thirty days of service of the notice of appeal or record of appeal; failure to do so renders the application fatally defective unless leave to file out of time is sought and obtained

Court orders

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  1. 1.The application dated 24th March 2021 seeking to strike out the notice of appeal is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3A
  • Court of Appeal RulesRule 3
  • Court of Appeal RulesRule 75 (now Rule 77)
  • Court of Appeal RulesRule 84 (now Rule 86)
  • Court of Appeal RulesRule 4

Cases cited (8)

  • County Government of Bomet v Moi University & 9 others
    [2017] eKLR
  • Mae Properties Limited v Joseph Kibe & Another
    [2017] eKLR
  • Kahinga v Mutura (Civil Application 22 of 2020)
    [2022] KECA 428 (KLR)
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others
    [2013] eKLR
  • Salama Beach Hotel Limited & 4 others v Kenyariri & Associates Advocates & 4 others
    [2016] eKLR
  • Joyce Bochere Nyamweya v Jemima Nyaboke Nyamweya & another
    [2016] eKLR
  • William Mwangi Nguruki v. Barclays Bank of Kenya Ltd
    [2014] eKLR
  • Michael Mwalo v. Board of Trustees of National Social Security Fund
    [2014] eKLR
Jurisdiction invoked
Sections 3A of the Appellate Jurisdiction Act and Rules 3, 75 and 84 of the Court of Appeal Rules

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, "Mathingira Wholesalers Company Limited v Lucy Mwai and Company Advocates (Civil Application E027 of 2021) [2024] KECA 1029 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1029/eng@2024-05-24

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