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Court of AppealStruck OutCivil Appeal No. 11 of 2018· [2019] KECA 738 (KLR)

Arap Mursoi (deceased) v Ezekiel Kiplel & 7 Others

Court of Appeal of Kenya
9 May 2019
AMA. MakhiandiaPKP. KiageOOOtieno Odek
270 words in judgment
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The bottom line

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The Court of Appeal struck out an appeal filed 14 months late without permission, confirming that late records of appeal will not survive.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Eldoret (Makhandia, Kiage and Odek, JJA) on a Notice of Motion dated 25th January 2019 seeking to strike out the Record of Appeal in Civil Appeal No. 11 of 2018. The application was supported by the affidavit of Isaac Julius Sang, the 4th respondent in the appeal, on the ground that the appeal was filed out of time: judgment was delivered on 27th April 2017, the appeal ought to have been filed by 9th July 2017, yet it was lodged on 12th September 2018 - approximately fourteen months late and without leave of the Court. The 1st respondent supported the application, while the respondent to the application opposed it on points of law only, without filing a replying affidavit. The court was satisfied that the Record of Appeal had been filed fourteen months late without leave, and further that the applicant had complied with Rule 84 of the Court of Appeal Rules in bringing the application. It accordingly ordered that the appeal be struck off the Record, allowed the motion, and awarded costs of the application to the 4th respondent and the 1st respondent. The binding proposition for lower courts and practitioners is that a Record of Appeal filed out of the prescribed time, and without leave, is liable to be struck out on the motion of an affected party.

Key legal issues

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01

Whether an appeal filed well outside the statutory period without leave can stand

Holding

The appeal having been filed 14 months after the date it ought to have been filed, and without leave to file out of time, the Record of Appeal was struck out.

Reasoning

The judgment was delivered on 27th April 2017 and the appeal ought to have been filed by 9th July 2017. It was instead filed on 12th September 2018, some 14 months late. The respondent to the application opposed only on points of law and filed no replying affidavit. The court was satisfied the delay was unexcused and that the applicant had complied with Rule 84 of the Court of Appeal Rules in moving the application.

p. 1

Legal principles established

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  • A Record of Appeal filed out of time without leave of the Court is liable to be struck out

Court orders

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  1. 1.Civil Appeal No. 118 of 2018 be and is hereby struck off the Record
  2. 2.The Notice of Motion dated 25th January, 2019 is allowed with costs to the 4th respondent and the 1st respondent
Jurisdiction invoked
Court of Appeal Rules (Rule 84) and the Court's inherent power to strike out a Record of Appeal filed out of time without leave

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, "Arap Mursoi (deceased) v Ezekiel Kiplel & 7 Others", Case Analysis (2019). Civil Appeal No. 11 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/738/eng@2019-05-09

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