Total Kenya Limited v Reuben Mulwa Kioko
The bottom line
#The Court of Appeal struck out a late attempt to kill an appeal because it missed a strict 30-day filing deadline.
What this practically means
#Executive summary
#Key legal issues
#Competency of the Rule 84 striking-out application filed outside the 30-day window
The application, filed on 29th December 2017 after service of the Record of Appeal on 15th November 2017, fell outside the 30-day period (adjusted for the Jamuhuri Day holiday) and was incompetent; it was struck out.
Rule 84 permits a person affected by an appeal to apply to strike out a notice or record of appeal, but its proviso bars any such application brought after thirty days from service of the notice or record. Service of the record on 15th November 2017 was not in dispute, so the deadline, extended for the Jamuhuri Day public holiday, expired on 18th December 2017. Filing on 29th December 2017 was out of time. Precedent of this Court confirms the proviso is mandatory and non-compliance is fatal.
Whether the Notice and Record of Appeal should be struck out for late service and omission of the certified order
The court did not reach the merits of the respondent's striking-out grounds because the application itself was incompetent; the Notice and Record of Appeal were not struck out.
The respondent argued under Rule 77(1) that the Notice of Appeal was never served, under Rule 90(1) that the record was served over five months late, and under Rule 87(h) that the certified order was omitted, relying on Bwana Mohamed Bwana. The appellant conceded late service but invoked Salat, urging the court to overlook an inadvertent error causing no prejudice. Because the application was out of time under the Rule 84 proviso, the court disposed of it on that threshold ground without determining these grounds.
Legal principles established
#- An application to strike out a notice of appeal or an appeal under Rule 84 must be brought within thirty days of service of the notice of appeal or record of appeal, and failure to comply renders the application incompetent and liable to be struck out.
- The time for computing the thirty-day period under the proviso to Rule 84 excludes public holidays, and the proviso is mandatory.
Court orders
#- 1.The application dated and filed in the Court on 29th December, 2017 is struck out
- 2.No orders as to costs
- On appeal from
- High Court of Kenya at Malindi
- H.C.C.C. No. 27 of 2016
- Jurisdiction invoked
- Rule 84 of the Court of Appeal Rules (application to strike out a notice or record of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Total Kenya Limited v Reuben Mulwa Kioko", Case Analysis (2018). Civil Appeal (Application) No. 35 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/138/eng@2018-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.