Mathingira Wholesalers Company Limited v Lucy Mwai and Company Advocates (Civil Application E027 of 2021) [2024] KECA 1029 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Compliance with the proviso to Rule 86 (formerly Rule 84) on the time for bringing an application to strike out a notice of appeal
The application, filed four days outside the thirty-day period and without leave, offends Rule 86 and must be dismissed
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.
Legal principles established
#- 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
#- 1.The application dated 24th March 2021 seeking to strike out the notice of appeal is dismissed
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Sections 3A of the Appellate Jurisdiction Act and Rules 3, 75 and 84 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.