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Court of AppealPartially AllowedCivil Appeal (Application) 333 of 2010

DISHON OCHIENG v SDA CHURCH, KODIAGA [2012] KECA 169 (KLR)

Court of Appeal of Kenya
22 March 2012
ROR. S. C. OmoloEGE. M. GithinjiAVAlnashir Visram
497 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal filed just three days late, confirming that constitutional fairness powers cannot excuse missed court deadlines without fresh leave.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Kisumu on a notice of motion dated 2nd February 2011 by SDA Church, Kodiaga, seeking the striking out of Civil Appeal No. 333 of 2010, which had been lodged against them by Dishon Ochieng following a judgment of the High Court of Kenya at Kisumu (Mwera, J) dated 6th March 2008 in HCCC No. 162 of 2001. The motion was brought under Rule 84 of the Court of Appeal Rules on two grounds: that the record of appeal was filed and served out of time contrary to the order granting extension of time, and that the notice did not indicate service on the 1st defendant in the High Court. By an order of Visram, JA, sitting as a single Judge, made on 22nd November 2010, the respondent was granted leave to file the notice of appeal within seven days and the record of appeal within fourteen days thereafter. The notice of appeal was filed and served in time, but the record of appeal, due by 13th December 2010, was filed on 16th December and served on 17th December - three and four days late respectively - without any further leave. The delay was admitted. Respondent's counsel relied on Article 159 of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act to cure the omission. The Court agreed with the applicant's counsel that those provisions could not be used to circumvent the Rules of the Court. The motion was allowed, the appeal struck out, costs of the motion awarded to the applicant, and no order made as to costs of the struck-out appeal.

Questions the Court framed

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

  1. 1.Whether the record of appeal filed three days out of time, without leave of the court, should be struck out under Rule 84 of the Court of Appeal Rules
  2. 2.Whether Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution could cure the failure to comply with the Rules of the Court

Key legal issues

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01

Whether a record of appeal filed three days late, without further leave, must be struck out under Rule 84

Holding

Yes; the record was filed and served beyond the period fixed by the single Judge's extension order, without any further extension of time, and the appeal was struck out.

Reasoning

The facts of the delay were not disputed: the extension order required the record to be filed and served by 13th December 2010, but it was filed on 16th December and served on 17th December. Counsel for the respondent admitted the delay and relied only on Article 159 of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act. The Court held those provisions could not be used to circumvent the Rules, and struck out the appeal under Rule 84.

p. 2

Legal principles established

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  • The overriding-objective provisions (Article 159 of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act) cannot be invoked to excuse non-compliance with the Court of Appeal Rules where a filing deadline fixed by the Court has passed without leave.

Court orders

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  1. 1.The notice of motion dated 2nd February, 2011 is allowed
  2. 2.Civil Appeal No. 333 of 2010 is struck out
  3. 3.Costs of the motion awarded to the applicant; no order as to costs of the struck out appeal

The bench

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

RO
majority
EG
majority
AV
majority
On appeal from
High Court of Kenya at Kisumu
HCCC No. 162 of 2001
Jurisdiction invoked
Rule 84 of the Court of Appeal Rules (application to strike out appeal)

Relief refused

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Indulgence under Article 159 of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act to salvage the appeal filed out of time

The Court agreed with the applicant's counsel that those provisions cannot be used to circumvent the Rules of the Court

p. 2

Costs

Costs of the motion awarded to the applicant; no order as to costs of the struck out appeal.

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.

There is no dispute that the record of appeal was filed three days late, without leave of the Court.
p. 2unexplained non-compliance with filing deadline
We agree with Mr I. E. N. Okero, learned counsel for the applicant, that these provisions of the law would not help the respondent circumvent the Rules of the Court.
p. 2Article 159 and overriding objective cannot cure breach of Rules
In the event, we allow the notice of motion dated 2nd February, 2011, and lodged in Court on the same date with the result that Civil Appeal No. 333 of 2010 is hereby struck out.
p. 2final orders - striking out
We award the costs of the motion to the applicant but we make no order as to costs of the struck out appeal.
p. 2costs order

Issues in the judgment

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minor

The caption header reads 'IN THE HIGH COURT' but the ruling is plainly a Court of Appeal ruling delivered by three Judges of Appeal under the Court of Appeal Rules, at Kisumu.

minor

The parties' labels in the caption are reversed relative to the application: the applicant (SDA Church, Kodiaga) is described as 'RESPONDENT/APPLICANT' and Dishon Ochieng as 'APPELLANT/RESPONDENT', yet the ruling refers to 'Dishon Ochieng, the respondent herein' and SDA Church as 'the applicant'.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "DISHON OCHIENG v SDA CHURCH, KODIAGA [2012] KECA 169 (KLR)", Case Analysis (2012). Civil Appeal (Application) 333 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/169/eng@2012-03-22

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