Gichuki v Nangurai [1984] KECA 15 (KLR)
The bottom line
#The Court of Appeal dismissed a beneficiary's attempt to strike out a notice of appeal because he had not formally joined the appeal, costing him money.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant, a beneficiary/assignee of the High Court judgment but not a party to the appeal, had locus standi to apply under Rule 80 to strike out the respondent's notice of appeal
- 2.Whether the respondent failed to file his appeal within the prescribed time or to prosecute it expeditiously in accordance with the consent order of October 29, 1982
Key legal issues
#Locus standi of a non-party beneficiary to apply to strike out a notice of appeal
The applicant, as beneficiary or assignee of the High Court judgment but not a party to the appeal, lacked standing to bring the striking-out application because he had not applied in proper form to be joined and had no leave to appear.
Although the applicant had an interest in the underlying judgment and had appeared at the stay application without objection, the court held that standing in inter partes litigation cannot be conferred by the parties' consent. Madan JA had earlier suggested an application to be joined; the informal application under rule 76(1) was dealt with de bene esse only. Without formal joinder, the applicant had no interest in the appeal's prosecution.
Whether the respondent's delay warranted striking out the notice of appeal
The court did not reach the merits of the striking-out application, dismissing it on standing grounds while observing the procedural route the respondent could take to remedy the incomplete proceedings.
The court accepted that the respondent had not filed his appeal within the prescribed time and had not prosecuted it expeditiously as undertaken in the consent order. However, since the applicant lacked standing, the court declined to strike out the notice, and instead outlined practical steps (photocopying imperfect pages, certification) by which the respondent could proceed.
Legal principles established
#- A person served with a notice of appeal may apply to the Court of Appeal to strike it out on the ground that an essential step in the proceedings has not been taken or not taken within the prescribed time.
- The requirement of locus standi is applied more liberally in applications for prerogative orders than in inter partes proceedings, but it cannot be overcome by the consent of the parties.
- A person who is not a party to an appeal, and who has not been joined or given leave to appear, has no interest in whether the appeal is filed in time or prosecuted expeditiously, and cannot move to strike it out.
Court orders
#- 1.The application to strike out the notice of appeal was dismissed
- 2.The applicant must pay the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Nairobi High Court Civil Suit 1038 of 1974
- Jurisdiction invoked
- Rules 42, 80 and 82(a) of the Court of Appeal Rules
Relief refused
#Striking out of the respondent's notice of appeal
The applicant lacked locus standi, having made no proper application to be joined as a party to the appeal and having no leave to appear
Costs
The application must be dismissed and the applicant must pay the cost of it.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Rule 80 declares that a person on whom a notice of appeal has been served may at any time, either before or after the institution of the appeal, apply to this court to strike out the notice or the appeal
The requirement as to locus standi in an application for a prerogative order is dealt with more liberally by a court than that it is in inter parties proceedings: see Lord Wilberforce in Gouriet v Union of Post Office Workers, (1978) AC 435 but it cannot be overcome by consent of the parties.
Until he does so, he has no interest in whether the appeal has been filed in time or is being prosecuted expeditiously. The application must be dismissed and the applicant must pay the cost of it.
Issues in the judgment
#The headnote states the application was dismissed with costs, but the body attributes the dismissal and costs to the applicant's lack of standing after an informal rule 76(1) application dealt with de bene esse; the interplay between the dismissed joinder application and the dismissal of the motion is not separately ordered.
The headnote misspells words ('poper application', 'applicant's applicantion') and refers to the applicant as beneficiary, while the body describes him as beneficiary or assignee.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichuki v Nangurai [1984] KECA 15 (KLR)", Case Analysis (1984). Civil Application No NAI 25 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/15/eng@1984-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.