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Court of AppealDismissedCivil Application No. NAI. 5 of 2015 (UR. 5/2015)· [2015] KECA 492 (KLR)

Francis Mwangi Njuguna & 1 other v Zacharia Somi Nganga

Court of Appeal
31 July 2015
860 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 refused to strike out an appeal delayed by a lost letter, showing courts now prioritise fairness over strict procedural deadlines.

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 Nairobi (Visram, Mwera and Sichale, JJ.A) on an application under Rules 83 and 84 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act to strike out a notice of appeal dated 29th October 2009. The notice targeted the High Court decision of Khaminwa, J of 19th October 2009 in HCCC No. 82 of 2009, which allowed the applicants - purchasers of Nairobi/Block/72/1026 at a public auction - to evict the respondent, the property's previous owner who had earlier lost a suit seeking to stop the transfer. The applicants argued the respondent had taken no steps to file the record of appeal although proceedings were ready since 21st January 2014. The court found that Rule 82(1) required lodging the appeal within 60 days, but accepted the respondent's explanation that his advocate likely never received the Deputy Registrar's letter advising that proceedings were ready - a letter the applicants' own counsel admitted receiving only after five months. Invoking the overriding objective under Article 159 of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act, the court held striking out would be too drastic a step at that stage. It disallowed the application, ordered the respondent to file and serve the record of appeal within 14 days, and awarded the applicants the costs of the application.

Key legal issues

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01

Whether an appellant's failure to lodge the record of appeal within the 60-day period under Rule 82(1) of the Court of Appeal Rules mandates striking out the notice of appeal

Holding

No. Where a credible explanation exists for the delay - here, the advocate's non-receipt of the Deputy Registrar's letter that proceedings were ready - the court, applying the overriding objective under Article 159 of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act, will decline to strike out and instead grant a short window to comply.

Reasoning

Rule 82(1) required the respondent to lodge the appeal within 60 days of the notice of appeal or of the proceedings being ready on 21st January 2014. He had not done so. However, the Deputy Registrar's letter of 21st January 2014 was received by the applicants' own counsel only after five months, corroborating the respondent's explanation that his advocate may never have received it. The court invoked the overriding objective to facilitate the just, expeditious, proportionate and affordable resolution of disputes and to avoid over-reliance on technicalities, holding striking out to be too drastic, and instead granted 14 days to file and serve the record of appeal.

p. 2

Legal principles established

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  • This Court has power under both Article 159 of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act to bear in mind the overriding objective of civil litigation

Court orders

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  1. 1.The application to strike out the notice of appeal is disallowed
  2. 2.The respondent is ordered to take steps within 14 days to file and serve the record of appeal
  3. 3.Costs of the application awarded to the applicants
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 82 of 2009
Jurisdiction invoked
Rules 83 and 84 of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act

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, "Francis Mwangi Njuguna & 1 other v Zacharia Somi Nganga", Case Analysis (2015). Civil Application No. NAI. 5 of 2015 (UR. 5/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/492/eng@2015-07-31

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