Francis Wakahiu Theuri v Monica Njeri Esther Wangui Catherine Muthoni Francis Njuru Ngugi T/A Wawage Investment Company & 1 other
The bottom line
#Kenya's Court of Appeal refused to strike out notices of appeal, confirming that striking-out applications only succeed on narrow, rule-specified grounds.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant's grounds fell within rule 84
The grounds advanced by the applicant (frivolity, lack of chances of success, non-compliance with High Court orders) are not among the grounds permitted by rule 84 and are matters for argument at the hearing of the appeal.
Rule 84 confines striking out to cases where no appeal lies or an essential step has not been taken or was not taken within the prescribed time. The applicant did not contend that the ruling was unappealable or that an essential step was omitted. His complaints went to the merits of the intended appeal, which cannot be determined on a striking-out application.
Timeliness of lodging and service of the notices of appeal
The notices were lodged within 14 days under rule 75(2). Although service outside the 7-day period under rule 77(1) was late, the delay was excused because the applicant's advocates' firm had closed following the death of its proprietor, and the late service was cured by rule 78.
The notices were lodged on 1st October 2013, within 14 days of the ruling. Service was delayed because the firm of Njoroge & Musyoka Advocates had been closed indefinitely after the death of Mr. Njoroge, reopening only at new premises. The court found these circumstances covered by rule 78, which prevents a notice of appeal from being incompetent for reasons of such inability to serve.
Compliance with the 30-day time limit in the proviso to rule 84
The application was filed on 27th November 2013 and was out of time in respect of the notice of appeal dated 30th September 2013, though within time for the notice dated 27th September 2013.
The proviso to rule 84 requires a striking-out application to be brought within 30 days from the date of service of the notice of appeal or record of appeal. Counting from the dates of service deponed to in the applicant's own affidavit, the application was only within time as regards one of the two notices, rendering it fatally defective as regards the other.
Legal principles established
#- The grounds for striking out a notice of appeal under rule 84 are limited to those specified in the rule, namely that no appeal lies or that an essential step has not been taken or not taken within the prescribed time; other complaints are matters for argument at the hearing of the appeal.
- A notice of appeal is not rendered incompetent by late service where service could not be effected because the firm of advocates on whom service was required had closed following the death of its proprietor; rule 78 cures such late service.
Court orders
#- 1.The application to strike out the notices of appeal dated 27th September 2013 and 30th September 2013 is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- ELC Case No. 2484 of 1994
- Jurisdiction invoked
- Rule 84 of the Court of Appeal Rules - application to strike out notices of appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Wakahiu Theuri v Monica Njeri Esther Wangui Catherine Muthoni Francis Njuru Ngugi T/A Wawage Investment Company & 1 other", Case Analysis (2014). Civil Application No. NAI 323 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/467/eng@2014-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.