Independent Electoral & Boundaries Commission (I E B C) & another v Philip Mukui Wasike & another [2014] KECA 394 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an unprosecuted appeal notice is automatically deemed withdrawn after sixty days, and applications to strike out notices must be filed within thirty days.
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 applicants' application to strike out the notice of appeal is barred by the proviso to rule 84 of the Court of Appeal Rules requiring such applications within thirty days of service
- 2.Whether a notice of appeal must be lodged in the Court of Appeal rather than the High Court registry where the decision was given
- 3.Whether the respondent should be deemed to have withdrawn his notice of appeal under rule 83 for failure to institute an appeal within the appointed time
Key legal issues
#Time bar under the proviso to rule 84
The application to strike out was out of time and the relief was unavailable.
The notice of appeal was served on the applicants' advocates on 14th October 2013. The application to strike out was lodged on 14th April 2014, six months later. Under the proviso to rule 84, such an application must be made within thirty days of service, so the striking-out prayer was not available to the applicants.
Correct registry for lodging a notice of appeal
The notice of appeal was properly lodged with the Registrar of the High Court at Bungoma.
The applicants relied on rule 59(1) to argue the notice of appeal ought to have been lodged in the Court of Appeal. The court held that a plain reading of the rule shows the notice of appeal should be lodged with the Registrar of the High Court where the decision sought to be appealed was given, which was Bungoma High Court. The ground therefore failed.
Deemed withdrawal under rule 83 for failure to institute appeal
Having failed to file a record of appeal within sixty days, the respondent's notice of appeal was deemed withdrawn.
Under rule 82(1), an appeal must be instituted by lodging in the appropriate registry, within sixty days of the lodging of the notice of appeal, a memorandum of appeal, record of appeal, prescribed fee and security for costs. The notice was lodged on 11th October 2013, so the respondent had until 11th April 2014. There was no evidence he did so, and the court applied rule 83 to deem the notice withdrawn, with costs to the applicants.
Legal principles established
#- An application to strike out a notice or record of appeal under rule 84 must be brought within thirty days of service of the notice of appeal or record of appeal; applications filed after that period are incompetent.
- A notice of appeal is properly lodged with the Registrar of the High Court where the decision appealed against was given, not in the Court of Appeal registry.
- Where a party who has lodged a notice of appeal fails to institute the appeal within sixty days of lodging the notice, the notice is deemed withdrawn under rule 83 and the party in default is liable to pay costs.
Court orders
#- 1.The notice of appeal dated and lodged 11th October, 2013 is deemed to have been withdrawn
- 2.The respondent, Philip Mukui Wasike, shall pay the costs of the applicants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- Election Petition No. 5 of 2013
- Jurisdiction invoked
- Rules 83 and 84 of the Court of Appeal Rules (application to strike out notice of appeal)
Relief refused
#Striking out of the notice of appeal
Application filed more than thirty days after service of the notice of appeal, contrary to the proviso to rule 84
Striking out on the ground that the notice of appeal was lodged in the High Court
Rule 59(1) requires lodging of the notice of appeal with the Registrar of the High Court where the decision was given
Costs
The respondent, Philip Mukui Wasike, shall be liable to pay the costs of the applicants.
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.
an application to strike out a notice or record of appeal should not be brought after the expiry of thirty (30) days from the date of service of the notice of appeal or record of appeal
the notice of appeal should indeed be lodged with the Registrar of the High court where the decision against which it is desired to appeal was given, which in this case, was Bungoma High Court
If a party who has lodged a notice of appeal fails to institute an appeal within the appointed time he shall be deemed to have withdrawn his notice of appeal
In the premises, applying the provisions of rule 83 of the rules, the notice of appeal dated and lodged 11th October, 2013 is hereby deemed to have been withdrawn.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Independent Electoral & Boundaries Commission (I E B C) & another v Philip Mukui Wasike & another [2014] KECA 394 (KLR)", Case Analysis (2014). Civil Application No. 28 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/394/eng@2014-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.