JOP v AKM

Mwangi & 26 Others v Mwenja Ngure & 4 Others [2016] eKLR for the proposition that, where a party has lodged a notice of appeal, an appeal must subsequently be led within 60 days failure to which the Court on its own motion or on application may deem such a notice of appeal as withdrawn; and Spencon (K) Limited v Hema Investments Ltd & Another [2021] eKLR, submitting that the Court of Appeal has discretionary powers to strike out notices of appeal not followed by a record of appeal within the prescribed timelines. 4. It is noteworthy that the respondent did not le any adavit in reply to the applicant’s Motion. However, learned counsel for the respondent, M/s. Omondi Waweru & Company, led grounds of opposition dated 7th March 2024 along with their written submissions of even date citing the case of Tome & Another v the Attorney General & 2 Others [2021] KECA 150 (KLR), submitting that this Court has held on several occasions that parties are bound by the mandatory proviso to rule 84 (now rule 86 of the 2022 Rules), and that failure to comply therewith renders the instant application fatally defective. 5. According to learned counsel, the applicant’s Motion is fatally defective for failure to comply with the proviso to rule 86 of the Court of Appeal Rules; and that the respondent has since instituted Civil Appeal No. E038 of 2024 between AKM and JOP. However, the date on which the appeal is alleged to have been led is not disclosed. 6. Rule 79(1) of this Court’s Rules requires that a notice of appeal be served before or within 7 days from the date on which it is lodged. That rule reads: 79. (1) 7. An intended appellant shall, before or within seven days after lodging notice of appeal under rule 77, serve copies of the notice on all persons directly aected by the appeal: Where the notice is served out of time, the Court has power to strike it out on such application as is before us pursuant to rule 86 of the Rules of this Court, which reads: 86. 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 a. that no appeal lies; or b. that some essential step in the proceedings has not been taken or has not been taken within the prescribed time: Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days after the date of service of the notice of appeal or record of appeal, as the case may be. 8. In MAE Properties Limited v Joseph Kibe & Another [2017] eKLR, this Court had this to say on the timelines prescribed under the Rules: “ We have said on numerous occasions that the Rules of Court exist for the purpose of orderly administration of justice before this Court. The timelines for the doing of certain things and taking of certain steps are indispensable to the proper adjudication of the appeals that come before us. The Rules are expressed in clear and unambiguous terms and they command obedience… https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1922/eng@2024-07-12 2

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Failure to comply with the timelines set invites sure consequences.” 9. We take to mind the fact that the respondent’s notice of appeal dated 9th June 2023 was lodged on 12th June 2023, which was 30 days after the date of the impugned judgment. In eect, it was lodged 16 days out of time and served on 17th July 2023, 28 days out of time, all without leave of this Court. On the other hand, the applicant’s Motion, having been led more than 30 days after service on the applicant of the notice of appeal, does not satisfy the proviso to rule 86 of this Court’s Rules in as far as the applicant seeks, in prayer 1 of the application, to have the notice of appeal struck out. 10. We form this view on the basis of the fact that, even though the exact date the Motion was led is not ascertainable from the record, it is clear to us that it must have been on or about 6th October 2023, the date on which it was executed. Consequently, we nd that the prayer 1 of Motion is incompetent and cannot be granted. 11. Turning to the propriety of the respondent’s notice of appeal, which was led and served out of time in contravention of rules 77(2) and 79(1) of this Court’s Rules, we take to mind the Court’s power under rule 85(1) (under which the application is also brought) pursuant to which the Court may deem such a notice as having been withdrawn. 12. Having considered the applicant’s Motion, the adavit in support, the ground on which it is anchored, the written and oral submissions of counsel, the cited authorities and the Rules, we allow prayer 2 of the application with the result that the respondent’s notice of appeal dated 9th June 2023 is hereby deemed as having been withdrawn pursuant to rule 85(1) as read with rules 77(2) and 79(1) of the Rules of this Court. The applicant shall have the costs of the Motion. Orders accordingly. DATED AND DELIVERED AT THIS 12TH DAY OF JULY, 2024. S. GATEMBU KAIRU, FCIArb ……………………………… JUDGE OF APPEAL A. K. MURGOR ………………………………… JUDGE OF APPEAL DR. K. I. LAIBUTA ………………………………… 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/2024/1922/eng@2024-07-12 3

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