Afrison Export Import Limited & another v Okoiti & 11 others (Civil Appeal (Application) 86 of 2017) [2024] KECA 1155 (KLR)
The bottom line
#The Court of Appeal struck out a late challenge to an appeal because it missed a strict 30-day deadline, so the appeal itself continues.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of non-parties to the High Court suit to appeal in the public interest
The 1st and 2nd respondents had standing, having been granted leave by a three-judge bench of the Court to file the appeal in the public interest; the applicants were in effect challenging that leave decision
The Court noted that the respondents were not parties to the High Court suit and in the ordinary course would lack standing. However, the Court (Githinji, Koome & Azangalala, JJ.A.) in Civil Application No. NAI 115 of 2016 had, relying on Article 258 of the Constitution and Mumo Matemu, granted leave to appeal in the public interest. Challenging standing was therefore an impermissible collateral challenge to a decision of the Court dated 30th September 2016.
Timeliness of the record of appeal under rule 82
The memorandum and record of appeal were filed out of time and without fresh leave, as the 60-day period expired on or before 1st March 2017 even excluding the Christmas recess, and no Certificate of Delay was exhibited
The Court computed the 60 days under rule 82(1) from service of the notice of appeal on 7th December 2016. Even applying rule 3(e) to exclude the Christmas recess, the last day was 1st March 2017; the record was lodged on 31st March 2017. The proviso for time taken to prepare typed proceedings did not assist, as no written request served on the other parties and no Certificate of Delay were shown.
Competence of the strike-out application under rule 84
The application, filed on 31st October 2017 following service of the notice of appeal on 7th December 2016, was outside the mandatory 30-day proviso to rule 84 and was therefore struck out
The proviso to rule 84 mandatorily requires a strike-out application to be brought within 30 days of service of the notice of appeal or record of appeal. Here the notice was served on 7th December 2016 but the motion was filed on 31st October 2017, many months late and without leave. Adopting Esther Anyango Ochieng and Salama Beach Hotel, the Court held the application fatally defective and struck it out. A party caught by time must apply for extension of time under rule 4 instead.
Legal principles established
#- An application to strike out a notice of appeal or an appeal under rule 84 of the Court of Appeal Rules must be filed within 30 days of service of the notice of appeal or record of appeal, failing which it is incompetent unless leave to file out of time is sought and obtained
- A party seeking to rely on the proviso to rule 82(1) (exclusion of time for preparation of typed proceedings) must have requested the proceedings in writing and served the request on the other parties, and should exhibit a Certificate of Delay
Court orders
#- 1.The notice of motion dated 31st October 2017 is struck out for being filed outside the 30-day period under the proviso to rule 84 and without leave
- 2.The costs of the application shall abide the outcome of the appeal
- Jurisdiction invoked
- Article 164 of the Constitution; sections 3, 3A and 3B of the Appellate Jurisdiction Act; rules 1(2), 43, 84, 87(i), (h) & (j) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Afrison Export Import Limited & another v Okoiti & 11 others (Civil Appeal (Application) 86 of 2017) [2024] KECA 1155 (KLR)", Case Analysis (2024). Civil Application No. NAI (unspecified) — Notice of Motion dated 31st October 2017 in respect of Civil Appeal No. 86 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1155/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.