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Court of AppealPartially AllowedNotice of Motion dated 26th April 2019 in the pending appeal (Nyeri)

County Government of Laikipia v Ngugi & another (Civil Appeal (Application) 62 of 2019) [2025] KECA 997 (KLR)

Court of Appeal of Kenya
23 May 2025
2,066 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out an appeal filed over a year late, ruling that constitutional fairness values cannot fix missed appeal deadlines.

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 (Ole Kantai, Lesiit and Ali-Aroni, JJA) on a Notice of Motion dated 26th April 2019 by the applicant, who is the 1st respondent in the main appeal, seeking striking out of the appeal under Rules 42(1), 43(1), 82(1) and 84 of the Court of Appeal Rules, 2010. The applicant argued that the appeal was filed on 4th April 2019, more than a year after the notice of appeal filed on 21st December 2017, without leave; that the letter bespeaking proceedings was never served on him, disentitling the appellant from the proviso to Rule 86(1); and that the memorandum of appeal was undated and the 1st third party was not served. The respondent admitted non-service, attributing it to oversight, and invoked Article 159(2)(d) of the Constitution, sections 3A and 3B of the Appellate Jurisdiction Act and the Court's inherent powers under Rule 1, relying on Hunker Trading Company Limited v Elf Oil Kenya Limited. The Court held that an appeal filed out of time without leave is incompetent, that the defect goes to jurisdiction and cannot be cured by the overriding objective, following Felister Wakonyo Wamahiu v Joseph Wachira Mwangi and applying City Chemist (NRB) v Oriental Commercial Bank Ltd. The appeal was struck out, with costs of the application awarded to the applicant and the 2nd respondent. The decision binds subordinate consideration of appeals lodged outside the 60-day window without leave.

Key legal issues

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01

Effect of non-service of the letter bespeaking proceedings on the time for instituting an appeal

Holding

Because the letter bespeaking proceedings was admittedly not served, the respondent could not rely on the proviso to Rule 86(1) to exclude time; the appeal ought to have been filed within 60 days of the notice of appeal or under a grant of extension, which was never sought.

Reasoning

Rule 84(2) expressly denies an appellant the benefit of the proviso to subrule (1) unless the written application for proceedings was served on the respondent. Non-service being admitted, the 60-day period ran from the notice of appeal filed on 21st December 2017; the appeal filed on 4th April 2019, over a year later and without leave, was out of time and incompetent.

p. 4
02

Whether the overriding objective can save an appeal filed out of time without leave

Holding

No. The competency of an appeal filed out of time without leave is a question of jurisdiction and cannot be cured by the overriding objective, the inherent powers of the Court, or Article 159(2)(d) of the Constitution.

Reasoning

Relying on Felister Wakonyo Wamahiu v Joseph Wachira Mwangi, the Court held that jurisdiction to entertain appeals is confined to timely appeals or those filed out of time with leave; holding otherwise would upset the established principles for institution of appeals. The respondent also offered no explanation for the delay, merely invoking Article 159(2)(d), sections 3A and 3B of the Appellate Jurisdiction Act and Rule 1.

p. 4
03

Alleged defects in the memorandum of appeal and non-joinder/non-service of the 1st third party

Holding

Not determinative, as the appeal was struck out principally for want of competence arising from late filing without leave.

Reasoning

The applicant alleged that the memorandum of appeal was undated, unsigned or not lodged, and that the 1st third party was not served as required by Rule 94. The respondent annexed a duly dated and lodged memorandum and contended it was not obliged to serve parties who had not filed a notice of address. The Court did not adjudicate these grounds, striking the appeal out on the jurisdictional ground.

p. 4

Legal principles established

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  • An appeal must be instituted within 60 days of the notice of appeal; where the letter bespeaking proceedings is not served on the respondent, the proviso excluding time for preparation of proceedings is unavailable, and an appeal filed out of time without leave is incompetent and must be struck out.
  • The overriding objective, the inherent powers of the Court and Article 159(2)(d) of the Constitution cannot cure the jurisdictional defect of an appeal filed out of time without leave.
  • The Court has jurisdiction only over appeals filed within the requisite time or out of time with leave.

Court orders

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  1. 1.The appeal is struck out as not competently before the Court
  2. 2.The applicant and the 2nd respondent shall have costs of the application
On appeal from
High Court
Jurisdiction invoked
Court of Appeal Rules (2010), Rules 42(1), 43(1), 82(1) and 84; sections 3A and 3B of the Appellate Jurisdiction Act; Article 159(2)(d) of the Constitution (invoked by the respondent)

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, "County Government of Laikipia v Ngugi & another (Civil Appeal (Application) 62 of 2019) [2025] KECA 997 (KLR)", Case Analysis (2025). Notice of Motion dated 26th April 2019 in the pending appeal (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/997/eng@2025-05-23

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