Trustees of The Kenya Assemblies of God v Suresh Kumar Sofat & 2 others
The bottom line
#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
#Executive summary
#Key legal issues
#Computation of the 60-day period for instituting an appeal under rule 82 of the Court of Appeal Rules
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.
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.
Whether the overriding objective and Article 159(2)(d) can cure an appeal filed out of time
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.
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.
Legal principles established
#- 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
#- 1.The record of appeal filed on 9th September 2014 is struck out under Rule 84 of the Court of Appeal Rules
- 2.The appeal is struck out for being incompetent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.