Saicare Enterprises Limited v Mana Pharmacy & another

4. The motion was opposed by the respondents through the adavit of Caleb Kisuya Kwoba, their learned counsel. He deposed that he led an application in the trial court for orders of stay of execution, setting aside the judgment and decree, leave to come on record after judgment and decree and nally, leave for the respondents to be allowed to give evidence; that he was allowed to come on record but the other prayers were denied. Once on record, he applied for typed proceedings on November 25, 2021. However, since the e-ling system of the Court was experiencing technical challenges, it was dicult to le the notice of appeal on time. According to the respondents, the ling of the notice of appeal was consequential upon the determination of their application aforesaid and that therefore time started running on February 22, 2022 with the delivery of the ruling. 5. The application was canvassed by way of written submissions. According to the applicant, the respondents led a notice of appeal challenging the judgment and decree of the trial court on February 18, 2022 when the decision had been rendered on November 22, 2021. This was approximately 78 or so days, way beyond the 14 days required pursuant to Rule 75(2) of this Courts Rules. The applicant relies on the case of Harun Theuri Ngunyi vs. Kinangop Division Land Disputes Tribunal (2021) KECA 428 eKLR and Kahinga vs. Mutura KLR 428 where this Court struck out notices of appeal that had been led out of time and implores us to do likewise. 6. In response, the respondents acknowledged that judgment and decree was delivered on November 22, 2021 but did not le the notice of appeal immediately. Instead, they led an application for stay of execution, to set aside the judgment and for leave for their counsel to come on record. That the gravamen of this application is when time started running for purposes of ling notice of appeal in respect of the judgment and decree. According to the respondents, time started to run on February 22, 2022 when the ruling on their application was delivered. Accordingly, their notice of appeal was led within time and thus prayed for the dismissal of the application. 7. We have considered the application, the submissions, the authorities cited and the law. From the record, judgment was delivered on November 22, 2021. The respondents concede that they led the notice of appeal against the judgment and decree on February 18, 2022, a whole 78 days later. 8. Rule 84 of the Rules is the basis upon which an application for striking out a Notice or record of appeal can be made. It provides:“ A person aected by an appeal may at any time, either before or after the institution of the appeal, apply to the Court to strike out the notice or the appeal, as the case may be, on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time…….” 9. As regards the notice of appeal, it has been stated by the Supreme Court to be a jurisdictional issue and not a technical matter of procedure. The court so stated in the case of Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, thus: “ A notice of appeal is a primary document to be led outright whether or not the subject matter under appeal is that which requires leave or not. It is a jurisdictional pre-requisite. The California Supreme Court while reversing the Court of Appeal decision that had dismissed the appellant’s notice of appeal as having been led out of time in Silverbrand vs. County of Los Angeles (2009) 46 Cal. 4th 106, 113 stated inter alia: “ As noted by the Court of Appeal, the ling of a timely notice of appeal is a jurisdictional prerequisite. “Unless the notice is actually or constructively led https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1058/eng@2022-10-07 2

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within the appropriate ling period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal.” (sic) The purpose of this requirement is to promote the nality of judgments by forcing the losing party to take an appeal expeditiously or not at all.’” 10. There is no dispute that the notice of appeal was led in February 18, 2022 when the judgment appealed against was delivered in November 22, 2021. It is clear therefore that this was far o from 14 days required by the law. There was no evidence brought to our attention that the respondent had ensured that the notice of appeal led out of time is legitimized through an application and or order for extension of time. The respondents may well have lodged in the trial court an application for stay of execution, to set aside the judgment as well as to have their counsel come on record. However, that did not stop time from running for purposes of ling the notice of appeal in respect of the judgment and decree dated November 22, 2021, contrary to the submissions of the respondents. The assertion by the respondents that time started to run on February 22, 2022 when the ruling on their application was delivered would be applicable if the applicant intended to appeal against the ruling. This is not the case here as it is clear that the notice of appeal led was against the judgment and decree and not the ruling. 11. We have in the premises, no reason not to accede to the applicant’s request. Accordingly, we strike out the notice of appeal dated March 17, 2022 with costs to the applicant. DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF OCTOBER, 2022. ASIKE-MAKHANDIA ............................ JUDGE OF APPEAL F. SICHALE ............................ JUDGE OF APPEAL H. A. OMONDI ............................ JUDGE OF APPEAL I certify that this is a True copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1058/eng@2022-10-07 3

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