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Court of AppealPartially AllowedCivil Application No. 40 of 2017

Mistry Premji Ganji (Investments) Limited v Kenya National Highways Authority [2018] KECA 102 (KLR)

Court of Appeal
6 December 2018
2,617 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 struck out an appeal because its Notice of Appeal was unsigned, unendorsed and served late, confirming courts won't excuse unexplained procedural failures.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Visram, Karanja and Koome JJ.A.) delivered on 6th December 2018 in Civil Application No. 40 of 2017, in which the applicant sought to strike out the respondent's appeal (Civil Appeal No. 40 of 2017) arising from a ruling of Omollo J in the Environment and Land Court at Mombasa delivered on 1st February 2017. The applicant argued that the Notice of Appeal was fatally defective for want of the deputy registrar's signature and date endorsement, was served out of the seven days prescribed by Rule 77(1), that the letter bespeaking proceedings was never served as required by Rule 82(2), and that the record of appeal was filed out of time under Rule 82(1). The respondent conceded late service and non-service of the letter bespeaking proceedings but attributed the delay to the registry and urged that the court was functus officio since the appeal had been determined. The court distilled four issues and resolved them against the respondent: the unsigned and unendorsed Notice of Appeal was fatally defective, following its decision in Daniel Nkirimpa Monirei; the one-day late service was unexplained and inexcusable notwithstanding Article 159; the record of appeal, filed 48 days out of time without a certificate of delay, was incompetent; and the functus officio claim failed because the appeal said to have been determined was a different, withdrawn matter. The court allowed the motion with costs to the applicant, effectively striking the foundation from the pending appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether failure to sign and endorse the filing date on a Notice of Appeal is a fatal defect
  2. 2.Whether failure to serve the Notice of Appeal on time is a fatal defect
  3. 3.Whether the Record of Appeal herein was incompetent
  4. 4.Whether the court is functus officio and if the appeal should be struck out

Key legal issues

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01

Effect of lack of signature and endorsement of the filing date on a Notice of Appeal

Holding

Such a Notice of Appeal is fatally defective as it lacks authentication, and the court saw no reason to depart from the Monirei finding

Reasoning

The court followed its prior decision in Daniel Nkirimpa Monirei, holding that signature and endorsement by the registrar authenticate the document that forms the foundation of an appeal. Departing from that finding would send a message that parties may ignore the Rules and introduce a Notice of Appeal at any time without signature or endorsement.

p. 2
02

Whether late service of the Notice of Appeal is fatal

Holding

Rule 77(1) is mandatory, but late service may be excused for good reason; here the delay of one day was unexplained and inexcusable

Reasoning

Service of the Notice of Appeal must be effected within seven days in accordance with Rule 77(1). The court acknowledged discretion to excuse late service for good reasons (citing Pattni, Salat and Mulwa), but the respondent offered no explanation whatsoever for the delay, making the non-compliance inexcusable notwithstanding the plea that it was a mere technicality.

p. 2
03

Whether the record of appeal was incompetent

Holding

Yes - it was filed 48 days out of time, without leave, and premised on a defective Notice of Appeal

Reasoning

The 60-day period under Rule 82(1) expired on 25th April 2017 but the record was filed on 20th June 2017. The exclusion of typing time under the proviso depends on service of the letter bespeaking proceedings, which was never served on the respondent, and no certificate of delay was pursued. Blame on the registry was therefore misplaced.

p. 3
04

Whether the court was functus officio because the appeal had been determined

Holding

No - the appeal alleged to have been determined was a different appeal, and the impugned appeal remained pending

Reasoning

The respondent cited Civil Appeal No. 20 of 2017, which was Majid Brek Karama vs. Zainab Abidin & Another and had been marked withdrawn, whereas the impugned appeal was Civil Appeal No. 40 of 2017 between KeNHA and the applicant, still pending. The functus officio claim was unsupported by any evidence.

p. 3

Legal principles established

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  • A Notice of Appeal that bears no rubberstamp of the High Court and lacks any endorsement by the registrar, including signature and date of filing, is fatally defective and cannot found a valid appeal
  • Rule 77(1) of the Court of Appeal Rules is couched in mandatory terms: a Notice of Appeal must be served within seven days of lodgement, and unexplained late service is inexcusable
  • A record of appeal founded on a fatally defective Notice of Appeal cannot stand, since the appeal is instituted by the Notice of Appeal
  • The benefit of exclusion of typing time under the proviso to Rule 82(1) is available only where the letter bespeaking proceedings is served on the court and the respondent; absent service and a certificate of delay, the record of appeal must be filed within sixty uninterrupted days

Court orders

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  1. 1.The notice of motion dated 18th July, 2017 is allowed, with costs to the applicant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
Environment and Land Court at Mombasa
Environment and Land Court Case No. 106 of 2016
Jurisdiction invoked
Inherent appellate jurisdiction under the Court of Appeal Rules (application to strike out an appeal; Rules 77(1) and 82(1))

Relief refused

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Respondent's plea to overlook procedural irregularities under Article 159 of the Constitution (the ' oxygen principle')

The respondent offered no explanation for late service and non-compliance with the Rules, which the court found inexcusable

p. 2

Respondent's contention that the court was functus officio since the appeal had been determined

The appeal said to have been determined (Civil Appeal No. 20 of 2017) was a different, unrelated appeal, and the impugned appeal remained live and pending

p. 3

Costs

We accordingly allow the notice of motion dated 18th July, 2017 with costs to the applicant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We accordingly allow the notice of motion dated 18th July, 2017 with costs to the applicant.
p. 3Final orders - application allowed
a Notice of Appeal which bears no rubberstamp of the High court and/or which lacks any other endorsement by the registrar of the High court is fatally defective.
p. 2Defective Notice of Appeal
an appeal is instituted by the Notice of Appeal and once the same is found to be fatally defective (as is the case herein) the fate of the record of appeal is equally sealed.
p. 2Consequence of defective Notice of Appeal on record of appeal
The record of appeal was thus inexcusably filed out of time, without leave of Court and premised on a defective Notice of Appeal.
p. 3Out-of-time record of appeal

Issues in the judgment

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minor

The judgment refers inconsistently to the case below, describing it at the header as ELC Case No. 106 of 2016 but elsewhere as ELC Case No. 106 of 2015

minor

The judgment inconsistently refers to the respondent as 'the appellant' when discussing the record of appeal and registry delay

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mistry Premji Ganji (Investments) Limited v Kenya National Highways Authority [2018] KECA 102 (KLR)", Case Analysis (2018). Civil Application No. 40 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/102/eng@2018-12-06

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