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Court of AppealPartially AllowedCivil Misc Appl No. 429 of 2001

Elizabeth Cheruiyot v Hudson Wanambisi Kamulamba [2002] KECA 115 (KLR)

Court of Appeal
23 April 2002
242 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 a Notice of Appeal served 11 days late, confirming a stamped copy can be served without waiting for the Registrar's signature.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi, delivered by Tunoi, Shah and Ole Keiwua, JJA, disposed of Civil Miscellaneous Application No. 429 of 2001 in which Elizabeth Cheruiyot, the Applicant and moving party, sought to strike out a Notice of Appeal lodged by Hudson Wanambisi Kamulamba, the Respondent and intended appellant in the underlying appeal. The Notice of Appeal was lodged on 1st December, 2001 but was not served on the Applicant's advocates until 18th December, 2001, some 11 days out of time, and no application for extension of time had been made to validate the late service. Counsel for the Respondent attributed the delay to the unavailability of a signed copy of the notice from the Registrar. The Court rejected that explanation, holding that a party need not wait for the superior court Registrar to sign a Notice of Appeal before serving it, since a stamped copy can be served. In the circumstances the Court struck out the Notice of Appeal, awarded the Applicant the costs of the application, and vacated the stay order the Court had granted on 16th March, 2001. It expressly declined to determine other issues raised by Mr. Katwa for the Applicant. The ruling cites no authorities or statutory provisions and is a single judgment of the whole bench, with no separate opinions. Its binding significance lies in two procedural propositions: effective service of a Notice of Appeal is achieved by a stamped copy without awaiting the Registrar's signature, and a Notice of Appeal served out of time without extension of time is liable to be struck out, with any related stay order falling with it.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent's Notice of Appeal, served some 11 days out of time, ought to be struck out.
  2. 2.Whether service of a Notice of Appeal must await the superior court Registrar's signature, or whether a stamped copy suffices for timely service.
  3. 3.Whether the stay order granted by the Court on 16th March, 2001 should be vacated once the Notice of Appeal is struck out.

Key legal issues

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01

Whether a Notice of Appeal served out of time must be struck out where no extension of time has been sought.

Holding

Yes. The Notice of Appeal lodged on 1st December, 2001 was served on 18th December, 2001, some 11 days out of time, and with no application for extension of time to validate the late service, it was struck out.

Reasoning

The Court found that the Notice of Appeal was lodged on 1st December, 2001 but served on 18th December, 2001, some 11 days out of time, and that no application for extension of time had been made to deem the service as having been done in time. The only excuse offered was the unavailability of a signed copy of the notice, which the Court rejected because a stamped copy could have been served. Late service, unvalidated by any extension of time, therefore rendered the Notice liable to be struck out, and the Court so ordered, with costs to the applicant.

p. 1
02

Whether service of a Notice of Appeal must await the Registrar's signature.

Holding

No. It is not necessary to wait for the superior court Registrar to sign the Notice of Appeal; a stamped copy can be served.

Reasoning

Counsel for the respondent explained the delay in service on the ground that a signed copy of the Notice of Appeal could not be obtained from the Registrar in good time. The Court rejected this as a valid excuse, holding that a party serving a Notice of Appeal need not wait until the superior court Registrar signs it, since a stamped copy can be served. The Registrar's signature is therefore no prerequisite to effective and timely service of the notice on the other side.

p. 1
03

Whether the stay order granted on 16th March, 2001 survives the striking out of the Notice of Appeal.

Holding

No. The stay order was vacated.

Reasoning

Having struck out the Notice of Appeal, the Court also vacated the stay order it had earlier granted in the matter. The ruling assigns no reasons for this order; it is consequential, since the striking out of the Notice of Appeal removed the intended appeal in respect of which the stay had been granted. The Court made the vacation of the stay part of its operative orders, alongside the striking out of the notice and the award of the costs of the application to the applicant.

p. 1

Legal principles established

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  • A party need not wait for the superior court Registrar to sign a Notice of Appeal before serving it; a stamped copy can be served, and the unavailability of a signed copy does not excuse late service.
  • A Notice of Appeal served out of time, where no application for extension of time has been made to validate the late service, is liable to be struck out.
  • A stay order granted in support of an intended appeal does not survive the striking out of the Notice of Appeal.

Court orders

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  1. 1.The Notice of Appeal lodged by the respondent on 1st December, 2001 is struck out.
  2. 2.The applicant will have the costs of this application.
  3. 3.The stay order granted by the Court on 16th March, 2001 is vacated.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
Jurisdiction invoked
Not stated in the ruling. The Court determined a miscellaneous application incidental to an intended appeal without citing any constitutional or statutory provision.

Relief refused

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Other relief/issues raised by Mr. Katwa for the applicant (not specified in the ruling)

The Court found it unnecessary to determine them after striking out the Notice of Appeal

p. 1

Costs

The applicant will have costs of this application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is not necessary to wait till the superior Court Registrar signs the notice of appeal in order to serve a copy thereof on the respondent. A stamped copy can be served.
p. 1Service of Notice of Appeal - a stamped copy suffices without awaiting the Registrar's signature
Upto now there has been no application for extension of time to deem the service as having been done in time.
p. 1Absence of an extension-of-time application to validate late service of the Notice of Appeal
In these circumstances, the Notice of appeal ought to be struck out. It is ordered struck out.
p. 1Final order - striking out a Notice of Appeal served out of time
We also order that the stay order granted by this Court on 16th March, 2001 is hereby vacated.
p. 1Final order - vacation of the stay order following striking out of the Notice of Appeal

Issues in the judgment

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minor

Chronological inconsistency within the ruling: the stay order is stated to have been granted by the Court on 16th March, 2001, which predates the Notice of Appeal lodged on 1st December, 2001; the year is likely a typographical error for 2002.

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, "Elizabeth Cheruiyot v Hudson Wanambisi Kamulamba [2002] KECA 115 (KLR)", Case Analysis (2002). Civil Misc Appl No. 429 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/115/eng@2002-04-23

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