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Court of AppealAllowedNotice of Motion dated 29th January 2019 (Court of Appeal, Nyeri)· [2024] KECA 1716 (KLR)

Charity Wanjiru Ndegwa & 2 others v The Hon Attorney General & 1 other

Court of Appeal of Kenya
21 November 2024
532 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal record filed 167 days late, confirming time limits in appealing are enforced strictly when unchallenged.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Kantai, Lesiit and Ali-Aroni, JJA) on a Notice of Motion dated 29th January 2019 by the 2nd applicant, Peter K. Korir, seeking to strike out the respondents' record of appeal under rules 42(1), 43(1), 82(1) and 84 of the Court of Appeal Rules (2010). When the application came up for hearing on 11th November 2024 only the applicant's counsel, Mr. Mubea, appeared; the respondents, though served with the hearing notice on 22nd October 2024, filed no response or submissions. The court examined rule 84, which permits a person affected by an appeal to apply at any time to strike out a notice or appeal where an essential step has not been taken within the prescribed time, provided the application is made within thirty days of service of the notice or record of appeal. It found the notice of appeal was filed on 29th May 2018, the record of appeal was lodged on 10th January 2019 — 167 days late — and was served on 18th January 2019, one day out of time and without leave. The application of 29th January 2019 was within the prescribed time (rule 84, now rule 86). With the default uncontroverted and no extension of time sought, the court allowed the application, struck out the record of appeal lodged on 10th January 2019, and awarded the applicant the costs of the application.

Key legal issues

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01

Timeliness of the striking-out application under rule 84

Holding

The application, filed on 29th January 2019 within 7 days of service of the record of appeal on 18th January 2019, was within the time prescribed under rule 84 (currently rule 86).

Reasoning

Rule 84 bars striking-out applications brought more than thirty days after service of the notice of appeal or record of appeal. The court verified the service date (18th January 2019) and the filing date (29th January 2019), satisfied itself the application fell within the prescribed window, and proceeded to determine it on the merits.

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02

Strike-out of a record of appeal filed out of time and without leave

Holding

The record of appeal, lodged 167 days late and served one day out of time without leave, was struck out because the default was uncontroverted and no extension of time was sought.

Reasoning

The record of appeal was lodged on 10th January 2019, 167 days after the notice of appeal filed on 29th May 2018, and served without leave. The respondents filed no response or submissions, so the applicant's contentions stood uncontroverted. The court invoked the principle that parties are bound by their pleadings and found merit in the application.

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Legal principles established

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  • Under rule 84 (now rule 86) of the Court of Appeal Rules, an application to strike out a notice of appeal or record of appeal filed out of time must be brought within thirty days of service of the notice of appeal or record of appeal, as the case may be.
  • Where a record of appeal is filed out of time and without leave, and no application for extension of time is made, the record is liable to be struck out on the unaffected application of a party affected by the appeal.

Court orders

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  1. 1.The application dated 29th January 2019 is allowed
  2. 2.The record of appeal lodged in Court on 10th January 2019 be and is hereby struck out
  3. 3.The applicant will have the costs of the application
Jurisdiction invoked
Rules 42(1), 43(1), 82(1) and 84 of the Court of Appeal Rules (2010)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Charity Wanjiru Ndegwa & 2 others v The Hon Attorney General & 1 other", Case Analysis (2024). Notice of Motion dated 29th January 2019 (Court of Appeal, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1716/eng@2024-11-21

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