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Court of AppealPartially AllowedNKR HCMCA No.1 of 2018 (application dated 4th June 2019)· [2024] KECA 1145 (KLR)

Royal Balloon Limited v County Government of Narok (Civil Application 164 of 2019) [2024] KECA 1145 (KLR)

Court of Appeal
20 September 2024
1,441 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out a late notice of appeal, confirming that strict filing deadlines in the Court of Appeal Rules must be met or the appeal dies.

What this practically means

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Executive summary

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This was an application by motion dated 4th June 2019, brought under sections 3A and 3B of the Appellate Jurisdiction Act and rules 77(1), 82(1) & (2), 83 and 84 of the Court of Appeal Rules, seeking the striking out of a notice of appeal lodged by the respondent against a Narok High Court judicial review ruling of 25th October 2018. That ruling had quashed the respondent's decision rescinding the applicant's approval to operate hot air balloons in Maasai Mara National Park and its prohibition on new developments and operations pending implementation of the management plan. The applicant contended that the notice of appeal dated 17th April 2019 and lodged on 30th April 2019 was filed out of time without leave, that no letter bespeaking proceedings was filed or served, and that the notice should in any event be deemed withdrawn under rule 83 since no appeal had been instituted within sixty days. The respondent, though represented at the hearing, filed no replying affidavit or submissions and did not controvert the claim that the notice was filed late. The Court of Appeal (Musinga, Asike-Makhandia and Ali-Aroni, JJA) held that the notice of appeal was filed and served outside the fourteen-day and seven-day periods prescribed by rules 75 and 77, with no extension of time or bespeaking letter to save it, applying Benedict Mwazighe v Walele. It elected to strike out the notice as incompetent rather than deem it withdrawn, and ordered each party to bear its own costs. The High Court ruling therefore stands unchallenged.

Key legal issues

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01

Timeliness and competence of the notice of appeal

Holding

The notice of appeal lodged on 30th April 2019 against a judgment of 25th October 2018 was filed way out of time and served late, without any extension of time, rendering it incompetent.

Reasoning

Rule 75 requires a notice of appeal within fourteen days of the decision; rule 77 requires service within seven days of lodging. No letter bespeaking proceedings was filed or served, so the proviso to rule 82 could not extend time, and no application for extension of time was made. The respondent did not controvert the applicant's contention that the notice was filed out of time.

p. 3
02

Alternative remedy of deeming the notice withdrawn under rule 83

Holding

Although the applicant sought both striking out and deeming the notice withdrawn, the Court exercised its discretion in favour of striking out for incompetence.

Reasoning

The substantive appeal was never instituted within sixty days of the notice of appeal, and no letter bespeaking proceedings was filed, so the respondent benefited from no extension of time. The Court found the procedural lapses serious and opted for striking out on incompetence rather than deeming withdrawal under rule 83.

p. 3

Legal principles established

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  • A notice of appeal filed outside the fourteen-day period prescribed by rule 75, without leave or extension of time, is incompetent and liable to be struck out.
  • Failure to lodge a letter bespeaking proceedings within thirty days forfeits the benefit of the proviso extending time for instituting an appeal, and an unprosecuted notice of appeal serves no useful purpose.

Court orders

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  1. 1.The respondent's notice of appeal dated 17th April 2019 is struck out on account of incompetence, having been filed outside the stipulated period and without leave of the Court
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3A, 3B
  • Court of Appeal Rulesrule 75
  • Court of Appeal Rulesrule 77(1)
  • Court of Appeal Rulesrule 82(1) & (2)
  • Court of Appeal Rulesrule 83
  • Court of Appeal Rulesrule 84
  • Court of Appeal Rulesrule 115

Cases cited (1)

  • Benedict Mwazighe & Another vs. Gasper Walele & 2 Others
    [2011] eKLR
On appeal from
High Court
Narok (judicial review ruling delivered 25th October 2018)
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and rules 77(1), 82(1) & (2), 83 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, "Royal Balloon Limited v County Government of Narok (Civil Application 164 of 2019) [2024] KECA 1145 (KLR)", Case Analysis (2024). NKR HCMCA No.1 of 2018 (application dated 4th June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1145/eng@2024-09-20

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