In re Estate of Katana Karisa Madago (Deceased) [2019] KECA 996 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal filed late without permission, confirming you must first get leave to file out of time before anything else.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the record of appeal filed on 5th July, 2017 should be struck out on the ground that it was filed out of time without leave of the court
Key legal issues
#Whether an appeal filed out of time without leave is competent
An appeal filed outside the prescribed time without leave is incompetent and must be struck out under Rule 84 of the Court of Appeal Rules.
The respondent conceded that the record of appeal was filed late, well beyond the 60 days ordered by the High Court. In the absence of leave enlarging time, the appeal is a nullity. Arguments about the delay not being inordinate, chances of success and absence of prejudice are relevant only to an application under Rule 4 before a single Judge, not to a strike-out application. The proper procedure is to first seek leave to enlarge time.
Whether the court would overlook procedural defects in the applicants' application
The court, in the interest of substantive justice under Article 159(2)(d), overlooked the invocation of wrong provisions in the application since it could be located within Rule 84 of the Court of Appeal Rules.
The application was sloppily drawn, invoking inapplicable provisions of the Civil Procedure Act and Appellate Jurisdiction Rules, a copy-pasting practice the court deprecated. Nonetheless, applying the overriding objective of substantive justice, the court located the application within Rule 84, which permits a person affected by an appeal to apply to strike it out where an essential step was not taken within the prescribed time, and the application was filed within the 30-day window.
Legal principles established
#- A record of appeal filed out of the prescribed time and without leave is incompetent and cannot be sustained.
- A party facing an application under Rule 84 to strike out an untimely appeal must first seek enlargement of time under Rule 4; the merits-of-appeal arguments belong before a single Judge.
Court orders
#- 1.The record of appeal filed by the respondent on 5th July, 2017 is struck out
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Malindi
- H.C. Succ. Cause No. 106 of 2014
- Jurisdiction invoked
- Rule 84 of the Court of Appeal Rules; Article 159(2)(d) of the Constitution
Relief refused
#Respondent's request to enlarge time or spare the application until he seeks leave to file the record of appeal out of time
There being no competent appeal, the respondent must first seek leave to enlarge time under Rule 4 before an application under Rule 84 can be resisted on those grounds
Costs
No order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The respondent having conceded the appeal was filed late, it is ipso facto, an incompetent appeal that cannot be sustained in the absence of leave to do so.
The respondent was putting the cart before the horse by asking us to enlarge time or spare the application until he seeks leave. Unfortunately, there being no competent appeal, he has to follow the procedure of first seeking leave to enlarge time.
This sloppiness resumably based on the practice of copy pasting must be deprecated.
We therefore, order the appeal to be and is hereby struck out with no order as to costs.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Charles P.O. Nyamunga & 68 others v Maseno University [2020] KEELRC 183 (KLR)[2020] KEELRC 183 (KLR)27 Nov 2020
Cite this brief
#Cite this brief
Caselaw, "In re Estate of Katana Karisa Madago (Deceased) [2019] KECA 996 (KLR)", Case Analysis (2019). Civil Application No. 44 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/996/eng@2019-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.