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Court of AppealPartially AllowedCivil Appeal (Application) No. 258 of 2014· [2016] KECA 311 (KLR)

Trustees of The Kenya Assemblies of God v Suresh Kumar Sofat & 2 others

Court of Appeal
29 July 2016
2,786 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal struck out an appeal filed late, confirming that missing appeal deadlines cannot be excused under constitutional fairness provisions.

What this practically means

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Executive summary

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This Court of Appeal judgment disposed of a motion by the 1st and 2nd respondents (Suresh Kumar Sofat and Sadina Sofat) to strike out the appellant's record of appeal, lodged on 9th September 2014 in an appeal from an interlocutory ruling of the High Court (Nyamweya J) of 3rd March 2014, as amended, which had granted them an injunction and an order for vacant possession of LR No. 209/11281. The respondents argued that time expired on 10th May 2014 and, allowing for the 39 days certified for preparing the proceedings, on 8th August 2014 at the latest. The appellant contended the record was filed in time, relying on Article 159(2)(d) of the Constitution, the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act, and the absence of notification that proceedings were ready. The Court applied rule 82(1) of the Court of Appeal Rules and the certificate of delay, which showed the certified proceedings were available and collected on 23rd May 2014; the record of appeal was therefore due by 23rd July 2014. Following George Mwai Mburu, it held that time taken to obtain a certificate of delay is not excluded by the proviso to rule 82, as the certificate may be filed later in a supplementary record. Relying on Patrick Kiruja Kithinji and the Supreme Court's Lemanken Aramat decision, the Court held that timely filing goes to jurisdiction and that an appeal filed out of time is not curable under Article 159. Allowing the motion, the Court struck out the record of appeal under rule 84, declared the appeal incompetent for want of jurisdiction, awarded costs to the respondents, and pointed the appellant to Jedida Alumasa on restarting the appellate process with an extension of time.

Key legal issues

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01

Computation of the 60-day period for instituting an appeal under rule 82 of the Court of Appeal Rules

Holding

The 60 days run from the date the certified copies of proceedings were made available and collected (23rd May 2014), so the record of appeal ought to have been filed by 23rd July 2014; filing on 9th September 2014 was out of time.

Reasoning

The proviso to rule 82 excludes only time certified by the registrar as required for preparation and delivery of the copy of proceedings. Once the proceedings were collected on 23rd May 2014, the statutory clock resumed. Delay in obtaining the certificate of delay itself is not excluded time, as the certificate can be filed later via a supplementary record under rule 88.

p. 4
02

Whether the overriding objective and Article 159(2)(d) can cure an appeal filed out of time

Holding

They cannot. Timely filing of an appeal is a jurisdictional requirement, and a defect going to jurisdiction cannot be cured by the overriding objective or Article 159.

Reasoning

Following Patrick Kiruja Kithinji v Victor Mugira Marete, the Court held that jurisdiction to entertain appeals exists only for appeals filed within the requisite time or out of time with leave. The Supreme Court's decision in Lemanken Aramat confirms that where the Constitution or statute ties a vital condition to the Court's power, the general discretion in Article 159 does not apply. Filing out of time is therefore not a mere technicality.

p. 5

Legal principles established

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  • Time taken to obtain a certificate of delay is not excluded in computing the 60-day period for lodging a record of appeal under the proviso to rule 82; the clock runs from collection of the certified proceedings.
  • Whether or not an appeal is filed on time goes to the jurisdiction of the Court, and an appeal filed out of time is not curable under Article 159 of the Constitution.
  • A litigant whose appeal is struck out may restart the appellate process by promptly seeking an extension of time to lodge a fresh notice of appeal.

Court orders

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  1. 1.The record of appeal filed on 9th September 2014 is struck out under Rule 84 of the Court of Appeal Rules
  2. 2.The appeal is struck out for being incompetent
  3. 3.Costs of the application awarded to the respondents
On appeal from
High Court of Kenya at Nairobi
E.L.C. No. 402 of 2013
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Appellate Jurisdiction Act and the Court of Appeal Rules (rules 82 and 84)

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, "Trustees of The Kenya Assemblies of God v Suresh Kumar Sofat & 2 others", Case Analysis (2016). Civil Appeal (Application) No. 258 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/311/eng@2016-07-29

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