Silas Njeru M’rithaa v M’rithaa Thaara [2019] KEELC 1030 (KLR)
The bottom line
#A Kenyan court dismissed a late appeal application, confirming that 14-day deadlines for seeking leave to appeal are strict and delays must be properly explained.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant complied with Order 43 rule 3 on applications for leave to appeal
The applicant did not, having filed the application out of the fourteen-day window
Order 43 rule 3 requires an application for leave to appeal to be made to the court making the order appealed from, orally at the time of the order or within fourteen days. The ruling was delivered on 15th July 2019 and the application was filed on 28th August 2019, well outside the period, with no adequate explanation offered beyond lack of funds, which the court found unpersuasive for filing a notice of appeal.
Whether the delay in filing the application was excusable
The delay was inordinate and unexplained; lack of funds was rejected as a justification
The court accepted the respondent's position that the delay from the 15th July 2019 ruling to the 28th August 2019 application was inordinate. The only explanation, that the applicant lacked money, was dismissed rhetorically, the court observing that filing a notice of appeal does not require substantial funds. The advocate was faulted for treating the application casually by asking for leave as a matter of formality.
Whether leave to file a notice of appeal could be sought in the same application as leave to lodge the appeal
No - the applicant had not been granted leave to lodge the appeal, so leave to file the notice of appeal against the ruling could not issue in the same application
The court agreed with the respondent that the two reliefs were sequential: leave to lodge the appeal had to be obtained first before a notice of appeal against the summary rejection could be filed. Since the applicant had never sought nor obtained the prior leave within the 14 days allowed, the second prayer could not succeed in this application.
Whether the court retained jurisdiction over the matter after summarily rejecting the appeal
The court declared itself functus officio
Having summarily rejected the intended appeal under Section 79B of the Civil Procedure Act on 15th July 2019, the court held it had discharged its function and could not revisit the matter. The declaration of functus officio foreclosed the applicant's attempt to revive the appeal through the present application.
Legal principles established
#- An application for leave to appeal under section 75 must in the first instance be made to the court making the order sought to be appealed from, within fourteen days from the date of such order
- A court that has summarily rejected an appeal under Section 79B becomes functus officio
- Leave to file appeals out of time must not be sought casually; delay must be explained
Court orders
#- 1.The application dated 28th August 2019 is dismissed
- 2.Costs of the application awarded to the respondent
- Jurisdiction invoked
- Order 43 of the Civil Procedure Rules, 2010; Sections 1, 1A, 3, 3A, 63(e), 95 of the Civil Procedure Act; Section 4 of the Appellate Jurisdiction Act; Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Silas Njeru M’rithaa v M’rithaa Thaara [2019] KEELC 1030 (KLR)", Case Analysis (2019). Chuka ELC Civil Appeal Case No. 05 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1030/eng@2019-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.