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Court of AppealPartially AllowedCivil Appeal (Application) No. 15 of 2018· [2018] KECA 189 (KLR)

Munir Abubakar Masoud (As member of Tawheed Muslim Association) v Ali Abdalla Salim & 1 other

Court of Appeal of Kenya
8 November 2018
1,227 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled an appeal filed late cannot be saved by the Constitution's technicalities rule; late appeals need the court's prior permission or face being struck out.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Malindi (Visram, Karanja and Koome, JJ.A) on the respondents' application to strike out the Record of Appeal from Angote, J.'s judgment of 5th October 2017 in E.L.C Case No. 78 of 2015, which had declared the respondents the legitimate Trustees of the Tawheed Girls Secondary School Trust and restrained the appellant from interfering with the school's management. The respondents argued the Record, filed on 13th February 2018, was out of time and without leave. The Court applied Rule 82(1) of the Court of Appeal Rules and the proviso excluding certified preparation time, read with the certificate of delay showing the proceedings were ready on 16th November 2017, and Section 26(1)(c) of the Court of Appeal (Organization and Administration) Act, 2015 excluding the Christmas vacation. It computed the deadline as 6th February 2018 and held the Record out of time. Applying Patrick Kiruja Kithinji v Victor Mugira Marete, the Court held that filing an appeal out of time goes to jurisdiction and is not curable under Article 159(2)(d). The Record was therefore liable to be struck out, but in the interest of justice the Court suspended the striking-out for two months to allow the appellant, who was in person, to apply for extension of time under Rule 4; if successful, the appeal would be deemed filed within time, failing which it would stand struck out with costs. Costs of the application were awarded to the respondents. The ELC judgment itself was not disturbed.

Key legal issues

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01

Computation of the 60-day period for filing a Record of Appeal, including exclusion of certified preparation time and the Christmas vacation

Holding

Time began to run when the certified proceedings were ready on 16th November, 2017; the Christmas vacation (21st December 2017 to 12th January 2018) was excluded, so the deadline was 6th February, 2018, and a Record filed on 13th February, 2018 was out of time.

Reasoning

Rule 82(1) requires filing within 60 days of the Notice of Appeal, but the proviso excludes periods certified by the Registrar as spent preparing proceedings. The certificate of delay showed 42 days were taken, making proceedings ready on 16th November 2017. Section 26(1)(c) of the Court of Appeal (Organization and Administration) Act, 2015 excludes the Christmas vacation. Counting 35 days to 21st December and resuming on 13th January 2018 yielded a deadline of 6th February 2018.

p. 2
02

Consequence of filing a Record of Appeal out of time without leave

Holding

The Record must be struck out because timeliness goes to jurisdiction; the defect is not curable under Article 159. However, the Court may suspend striking out to permit an extension-of-time application in the interest of justice.

Reasoning

Relying on Patrick Kiruja Kithinji v Victor Mugira Marete, the Court held that an appeal filed out of time without leave is outside its jurisdiction and Article 159 cannot cure the defect. The Court nonetheless exercised discretion in the interest of justice, suspending the striking-out for two months so the appellant could seek extension of time under Rule 4.

p. 2

Legal principles established

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  • An appellant must file the Record of Appeal within 60 days of lodging the Notice of Appeal, excluding any period certified by the Registrar as expended in preparing proceedings; failure to do so without leave deprives the Court of jurisdiction.
  • The defect of a late-filed appeal is jurisdictional and cannot be cured by Article 159's override of procedural technicalities.
  • A Record of Appeal filed out of time without leave must be struck out; the consequence of a late filing is striking out, though the Court may in the interest of justice suspend striking out to allow an extension-of-time application.

Court orders

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  1. 1.The Record of Appeal filed out of time without leave is liable to be struck out, but the order striking out is suspended for two months from the date of the ruling to enable the appellant to file an application for extension of time under Rule 4
  2. 2.If the appellant obtains extension of time within the two months, his appeal will be deemed to have been filed within time
  3. 3.If the appellant does not succeed in obtaining extension of time, the appeal shall stand struck out with costs
  4. 4.Costs of the application awarded to the respondents
On appeal from
Environment and Land Court
E.L.C Case No. 78 of 2015
Jurisdiction invoked
Court of Appeal Rules, particularly Rule 82(1) and Rule 4; Section 26(1)(c) of the Court of Appeal (Organization and Administration) Act, 2015; Article 159(2)(d) of the Constitution invoked by the appellant

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, "Munir Abubakar Masoud (As member of Tawheed Muslim Association) v Ali Abdalla Salim & 1 other", Case Analysis (2018). Civil Appeal (Application) No. 15 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/189/eng@2018-11-08

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