Director of Lands and Urban Planning, Government of Makueni County & another v others & 2 others (Civil Appeal (Application) 165 of 2019) [2024] KECA 1156 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal record filed late, confirming that weekends count in longer appeal deadlines and strike-out applications must be made within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Compliance with the 14-day timeline for filing a notice of appeal under rule 75
The notice of appeal filed on 22nd February 2019 was outside the 14-day period running from the ruling of 5th February 2019, even if weekends were excluded, because a 14-day period admits no exclusion of weekends
The Court applied rule 75 and the established computation principle that periods exceeding 6 days include weekends and holidays. Counting 14 days from 5th February 2019, the notice filed on 22nd February was late. Reliance on exclusion of weekends was therefore misplaced and non-compliance with the statutory timeline was established.
Effect of the proviso to rule 84 limiting strike-out applications to 30 days after service
The application to strike out the notice of appeal, filed more than 60 days after service, was out of time and unsustainable; the mandatory proviso binds parties
The notice of appeal was served on 25th February 2019 and the application was filed on 15th May 2019, far beyond 30 days. Following Total Kenya Limited v Rueben Mulwa Kioko, Esther Onyango Ochieng v Transmara Sugar Company and Salama Beach Hotel Limited, the Court held the proviso mandatory, so the strike-out of the notice could not be granted even though the notice was itself filed out of time.
Whether the record of appeal should be struck out
The application to strike out the record of appeal was filed within the 30-day proviso period, and since the record was filed out of time without any extension under rule 4, it was struck out
The record of appeal was filed on 26th April 2019 outside the 60-day timeline, the respondents' weekend-exclusion argument failing under the computation rule. Unlike the notice of appeal, the application on the record was within the proviso's 30-day window. The respondents never sought extension of time under rule 4, so the record could not stand and was struck out.
Legal principles established
#- Where a timeline under the Court of Appeal Rules exceeds 6 days, weekends and holidays are not excluded in the computation of time
- An application to strike out a notice of appeal under rule 84 must be brought within 30 days of service of the notice of appeal or record of appeal; failure to comply renders the application defective
- A party who files a notice of appeal or record of appeal out of time must seek extension of time under rule 4; non-compliance with timelines exposes the filing to being struck out
Court orders
#- 1.The application dated 15th May 2019 is allowed in part: the prayer to strike out the notice of appeal is refused as time-barred under the proviso to rule 84
- 2.The record of appeal filed on 26th April 2019 is struck out
- 3.Costs of the application are awarded to the applicants
- On appeal from
- Environment and Land Court, Makueni
- Not stated in the judgment
- Jurisdiction invoked
- Rules 82, 84 and 87 of the Court of Appeal Rules, 2010 (interlocutory application before the Court of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Director of Lands and Urban Planning, Government of Makueni County & another v others & 2 others (Civil Appeal (Application) 165 of 2019) [2024] KECA 1156 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1156/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.