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Court of AppealPartially AllowedCivil Application E093 of 2023· [2024] KECA 1922 (KLR)

JOP v AKM

Court of Appeal
12 July 2024
SKS. Gatembu KairuAMA. K. MurgorKLDr. K. I. Laibuta
1,326 words in judgment
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The bottom line

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Kenya's Court of Appeal deemed an out-of-time notice of appeal withdrawn, confirming that appeal deadlines are strictly enforced.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Mombasa (SG Kairu, AK Murgor and KI Laibuta, JJA) determined a motion by JOP seeking to strike out AKM's notice of appeal against the judgment of J. N. Onyiego, J in OS No. 5 of 2019 delivered on 12th May 2023, or alternatively to have the notice deemed withdrawn. The notice of appeal dated 9th June 2023 was lodged on 12th June 2023, 16 days out of time, and served on 17th July 2023, 28 days out of time, all without leave, contravening rules 77(2) and 79(1) of the Court of Appeal Rules. The court held that prayer 1 (striking out the notice) was incompetent because the proviso to rule 86 bars strike-out applications brought more than 30 days after service of the notice of appeal, and the Motion was filed on or about 6th October 2023. However, prayer 2 succeeded: the notice of appeal was deemed withdrawn under rule 85(1) as read with rules 77(2) and 79(1). The applicant was awarded the costs of the Motion. The court applied MAE Properties Limited v Joseph Kibe on the mandatory nature of the Rules' timelines. The respondent filed no affidavit in reply, only grounds of opposition and submissions. The ruling binds subordinate courts and the High Court on the operation of rules 85(1) and 86 of the Court of Appeal Rules.

Key legal issues

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01

Competency of the strike-out application under the proviso to rule 86

Holding

Prayer 1 of the Motion was incompetent because it was filed more than 30 days after service of the notice of appeal.

Reasoning

Rule 86's proviso bars strike-out applications brought after 30 days from service of the notice of appeal or record of appeal. The Motion was executed on 6th October 2023, more than 30 days after service on 17th July 2023. Even though the exact filing date was not ascertainable, the court found it must have been on or about 6th October 2023, so the prayer could not be granted.

p. 3
02

Deeming an out-of-time notice of appeal withdrawn under rule 85(1)

Holding

The respondent's notice of appeal, lodged 16 days out of time and served 28 days out of time without leave, was deemed withdrawn.

Reasoning

The notice of appeal dated 9th June 2023 was lodged on 12th June 2023, 30 days after the judgment, i.e. 16 days out of time, and served on 17th July 2023, 28 days out of time, all without leave. This contravened rules 77(2) and 79(1). Under rule 85(1), the Court may deem such a notice as having been withdrawn, and it did so on the applicant's application.

p. 3

Legal principles established

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  • An application to strike out a notice of appeal under rule 86 must be brought within 30 days of service of the notice of appeal or record of appeal; a late application is incompetent.
  • Where a notice of appeal is lodged and served out of time without leave, the Court may deem it withdrawn under rule 85(1) read with rules 77(2) and 79(1).
  • The timelines in the Court of Appeal Rules are indispensable and command obedience; failure to comply invites sure consequences.

Court orders

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  1. 1.Prayer 2 of the application allowed: the respondent's notice of appeal dated 9th June 2023 is deemed as having been withdrawn pursuant to rule 85(1) as read with rules 77(2) and 79(1)
  2. 2.The applicant shall have the costs of the Motion

Authorities

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Legislation

  • Court of Appeal Rulesrule 77(2)
  • Court of Appeal Rulesrule 79(1)
  • Court of Appeal Rulesrule 84
  • Court of Appeal Rulesrule 85(1)
  • Court of Appeal Rulesrule 86
  • Court of Appeal Rules (2022)rule 86

Cases cited (4)

  • John Mutai Mwangi & 26 Others v Mwenja Ngure & 4 Others
    [2016] eKLR

    Where an appeal is not filed within 60 days of a notice of appeal, the Court may deem the notice withdrawn

  • Spencon (K) Limited v Hema Investments Ltd & Another
    [2021] eKLR

    Court of Appeal has discretionary powers to strike out notices of appeal not followed by a record of appeal within prescribed timelines

  • Tome & Another v the Attorney General & 2 Others
    [2021] KECA 150 (KLR)

    Parties are bound by the mandatory proviso to rule 84 (now rule 86); non-compliance renders the application fatally defective

  • MAE Properties Limited v Joseph Kibe & Another
    [2017] eKLR

    Timelines in the Court of Appeal Rules are indispensable and command obedience; failure to comply invites sure consequences

On appeal from
High Court of Kenya at Mombasa
O.S No. 5 of 2019
Jurisdiction invoked
Rules 85(1) and 86 of the Court of Appeal Rules (application to strike out a notice of appeal or deem it withdrawn)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "JOP v AKM", Case Analysis (2024). Civil Application E093 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1922/eng@2024-07-12

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