Simon Ndungu & another v Kangathia Kiuna [2007] KECA 326 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed an attempt to strike out an appeal for delays before the filing deadline had even expired.
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 Notice of Appeal filed in H.C.Miscl.Civil Application No. 191 of 1999 (Nyeri) on 25th July, 2005 should be struck out on the ground that no record of appeal has been lodged within the time stipulated by the Rules.
- 2.Whether such a striking-out application is premature where the time for lodging the record of appeal under rule 81(1) has not been exhausted, the proceedings applied for having yet to be supplied.
Key legal issues
#Whether an application under rule 80 to strike out a Notice of Appeal is premature where the record of appeal has not been lodged but the time prescribed by rule 81(1) has not yet expired.
Yes. Where the proceedings applied for have not yet been supplied, time has not been exhausted within the meaning of rule 81(1), and the striking-out application is premature and must be dismissed.
The court proceeded on agreed facts: the respondent applied for copies of the proceedings on 21st July, 2005, but by the hearing of the application those proceedings had still not been received. The applicants conceded receipt of the letter bespeaking the proceedings, confirming that compilation of the record was outside the respondent's control. Because rule 81(1) bites only once the period stipulated for lodging the record of appeal has actually run, a striking-out application mounted before that point attacks a default that has not yet occurred. Such an application is premature and must fail.
Whether costs should follow the event where the unsuccessful applicants are unrepresented litigants who acted in genuine pursuit of expedition.
No. The court declined to make any order as to costs, exercising its discretion in favour of unrepresented applicants who were genuinely interested in the expeditious disposal of the intended appeal.
Although the general rule is that costs follow the event and the application failed, the court took into account that the applicants appeared in person and that their object was the speedy disposal of the intended appeal rather than oppression of the respondent. On those facts the discretion on costs was exercised leniently and no order as to costs was made.
Legal principles established
#- An application to strike out a Notice of Appeal for failure to lodge the record of appeal within the time stipulated by the Rules is premature, and ought not to be instituted, where the time allowed under rule 81(1) has not been exhausted - for example, where the proceedings bespoken have not yet been supplied.
Court orders
#- 1.The application fails and is dismissed.
- 2.There shall be no order as to costs, the applicants being unrepresented and genuinely interested in the expeditious disposal of the intended appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- H.C.MISC.APPLICATION NO. 191 OF 1999 (Nyeri)
- Jurisdiction invoked
- Rule 80 of the Rules of this Court (Court of Appeal Rules), the provision governing applications to strike out a Notice of Appeal; prematurity assessed against rule 81(1) of the same Rules.
Relief refused
#Striking out of the Notice of Appeal filed on 25th July, 2005 in H.C.Miscl.Civil Application No. 191 of 1999 (Nyeri).
The application was premature: the respondent had applied for copies of the proceedings on 21st July, 2005 and these had not yet been received, so the time for lodging the record of appeal had not been exhausted within the meaning of rule 81(1).
Costs
There shall be no order as to costs (each party to bear their own costs), as the applicants are unrepresented and were genuinely interested in seeing that the intended appeal is disposed of expeditiously.
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.
In the circumstances the application now before us, is premature and ought not to have been instituted in the first place as time has not been exhausted within the meaning of rule 81(1) of the Rules.
It is common ground that the respondent applied for the copies of the proceedings on 21st July, 2005 but to date the proceedings have not been received.
In the result, this application fails and is dismissed. However, as the applicants are unrepresented and were genuinely interested in seeing that the intended appeal is disposed of expeditiously, there shall be no order as to costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Ndungu & another v Kangathia Kiuna [2007] KECA 326 (KLR)", Case Analysis (2007). Civil Appli 319 of 2006 (NYR.15/06). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/326/eng@2007-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.