Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application No. E020 of 2023 (application dated 31st October, 2019 in Murang'a ELCA No. 23 of 2018)· [2024] KECA 1372 (KLR)

Martin F Kang'ara Kimani v Samuel Macharia Kimani

Court of Appeal
4 October 2024
1,128 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck out a notice of appeal filed six days late without leave, confirming late appeals have no automatic right to proceed.

What this practically means

#

Executive summary

#
The Court of Appeal (Mohammed, Kimaru and Muchelule, JJ.A) at Nairobi, in a judgment delivered on 4th October 2024, allowed an unopposed application dated 31st October 2019 by Martin F. Kang'ara Kimani seeking to strike out a notice of appeal filed by Samuel Macharia Kimani in Murang'a ELCA No. 23 of 2018. The underlying ELC judgment, delivered on 3rd October 2019, had allowed the applicant's appeal with costs and set aside the judgment in Murang'a CMCC Civil Case No. 98 of 2011. The respondent filed a notice of appeal on 23rd October 2019, six days beyond the 14-day period prescribed by Rule 77(2) of the Court of Appeal Rules, without seeking extension of time under Rule 4. The applicant's striking-out application, brought under Rules 75 and 84 of the 2010 Rules (now Rules 77 and 86 of the 2022 Rules), was filed on 1st November 2019, within 30 days of service of the notice of appeal on 30th October 2019, and therefore compliant with the proviso to Rule 86. Although unopposed, the court considered the application on its merits, applying Tome & Another v Attorney General (striking out is a draconian remedy exercised discretionarily in plain and outright instances) and Patrick Kiruja Kithinji v Victor Mugira Marete (jurisdiction lies only over timely appeals or those filed out of time with leave). The notice of appeal was struck out with costs to the applicant, preserving the applicant's enjoyment of the ELC judgment.

Key legal issues

#
01

Whether a notice of appeal filed out of time without an application for extension of time should be struck out

Holding

Yes. The notice of appeal was filed on 23rd October, 2019 against a judgment delivered on 3rd October, 2019, outside the 14-day period in Rule 77(2), and no extension of time was sought; the notice was therefore struck out.

Reasoning

Rule 77(2) requires a notice of appeal to be lodged within fourteen days of the decision appealed against. The respondent filed his notice six days late and did not invoke Rule 4 for extension of time. Despite being served with the striking-out application, the respondent did not respond or offer any explanation for the delay or non-compliance. An unopposed application must still be considered on its merits, and on the merits the court found the notice fatally out of time and without leave, warranting striking out under Rule 86.

p. 3
02

Whether the striking-out application was brought within the time limit in the proviso to Rule 86

Holding

Yes. The application was filed on 1st November, 2019, after service of the notice of appeal on 30th October, 2019, and was therefore within 30 days of service.

Reasoning

The proviso to Rule 86 bars an application to strike out a notice of appeal brought more than thirty days after service of the notice of appeal or record of appeal. The notice was served on 30th October, 2019, and the application was lodged on 1st November, 2019, well within the 30-day window. The court therefore found the application properly before it and compliant with Rule 86.

p. 3

Legal principles established

#
  • A notice of appeal filed outside the 14-day period prescribed by Rule 77(2) of the Court of Appeal Rules, without leave of the Court, is amenable to striking out under Rule 86, and an application to strike out must be brought within 30 days of service of the notice of appeal.
  • This Court's jurisdiction to entertain appeals is confined to appeals filed within the requisite time or filed out of time with leave of the Court.

Court orders

#
  1. 1.That the notice of appeal dated 23rd October, 2019 be and is hereby struck out
  2. 2.That costs of the application be to the applicant
On appeal from
Environment and Land Court
Murang'a ELCA No. 23 of 2018
Jurisdiction invoked
Rules 77 and 86 of the Court of Appeal Rules, 2022 (formerly Rules 75 and 84 of the Court of Appeal Rules, 2010)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Martin F Kang'ara Kimani v Samuel Macharia Kimani", Case Analysis (2024). Civil Application No. E020 of 2023 (application dated 31st October, 2019 in Murang'a ELCA No. 23 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1372/eng@2024-10-04

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