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Court of AppealAllowedKilgoris ELC Appeal No. E001 of 2021· [2024] KECA 1204 (KLR)

Ruth Munda Gituro v David Meitikini Maki & 3 others

Court of Appeal
20 September 2024
HOHannah OkwenguHOH. A. OmondiJNJoel Ngugi
2,367 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Court of Appeal struck out a notice of appeal filed late by an advocate who was never properly on record, ending that appeal entirely.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Okwengu, Omondi and Ngugi, JJ.A) delivered on 20th September 2024 on an application under Rule 86 of the Court of Appeal Rules, 2022 seeking to strike out a notice of appeal and an intended appeal against the judgment of the Environment and Land Court at Kilgoris (E.M. Washe, J.) dated 7th March 2023, which had dismissed an appeal and affirmed a subordinate court judgment in a land dispute over Plot No. 758, Nkararo Adjudication Section. The application advanced two grounds: that the notice of appeal dated 24th March 2023 was lodged on 27th March 2023, outside the fourteen days prescribed by Rule 77(2); and that it was filed by R. Miruka & Co. Advocates, who were not properly on record after judgment without consent or leave, contrary to Order 9 Rule 9 of the Civil Procedure Rules. The respondents, who filed no replying affidavit and did not appear at the hearing, argued in submissions that the filing was timely, that any defect was an advocate's inadvertent mistake curable under Article 159(2)(d), and cited Phillip Chemwolo. The Court held that the notice was unmistakably filed out of time, that the registry endorsement date is the official date of lodgement, and that an out-of-time notice bereaves the Court of jurisdiction. It further held that Order 9 Rule 9 serves a substantive purpose and is not a mere technicality, and that the respondents never sought leave, rendering the appeal still-born. The application dated 26th April 2023 was allowed; the notice of appeal was struck out with costs to the applicant.

Key legal issues

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01

Timeliness of the notice of appeal under Rule 77(2)

Holding

The notice of appeal was filed out of time and without leave; the fourteen days from the 7th March 2023 judgment expired on 21st March 2023, yet the notice was dated 24th March and endorsed on 27th March 2023.

Reasoning

Judgment was delivered on 7th March 2023, so the fourteen-day period under Rule 77(2) expired on 21st March 2023. The notice was dated 24th March and officially lodged 27th March. A party cannot excuse late lodgement by blaming the Deputy Registrar in submissions rather than by sworn affidavit, and in any event would need an extension of time under Rule 4. The out-of-time filing bereaves the Court of jurisdiction.

p. 4
02

Filing by an advocate not properly on record (Order 9 Rule 9)

Holding

The notice of appeal was filed by R. Miruka & Co. Advocates without consent of the previous advocates or leave of the court, rendering the appeal still-born.

Reasoning

The 1st and 2nd respondents had been represented throughout by O.M. Otieno & Co. Advocates at the ELC. R. Miruka & Co. Advocates came on record after judgment without a consent or leave. The rule protects advocates from fee-avoiding litigants and protects litigants via the leave mechanism. The Article 159(2)(d) merits preference is not a licence to ignore substantive rules; the respondents never applied for leave, so the appeal is a nullity.

p. 4

Legal principles established

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  • A notice of appeal lodged out of the fourteen days prescribed by Rule 77(2), without leave, deprives the Court of Appeal of jurisdiction and must be struck out.
  • The official date of lodgement of a notice of appeal is the date it is received and endorsed in the registry, not the date on its face.
  • Order 9 Rule 9 of the Civil Procedure Rules serves a substantive policy purpose and is not a mere technicality curable under Article 159(2)(d); a party must seek leave to come on record after judgment.

Court orders

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  1. 1.The notice of appeal dated 24th March, 2023 is struck out
  2. 2.Costs of the application to the applicant
On appeal from
Environment and Land Court
Kilgoris ELC Appeal No. E001 of 2021
Jurisdiction invoked
Rule 86 of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ruth Munda Gituro v David Meitikini Maki & 3 others", Case Analysis (2024). Kilgoris ELC Appeal No. E001 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1204/eng@2024-09-20

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