Martin F Kang'ara Kimani v Samuel Macharia Kimani
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
#Key legal issues
#Whether a notice of appeal filed out of time without an application for extension of time should be struck out
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.
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.
Whether the striking-out application was brought within the time limit in the proviso to Rule 86
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.
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.
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.That the notice of appeal dated 23rd October, 2019 be and is hereby struck out
- 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.