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Court of AppealPartially AllowedCivil Application No. 44 of 2017

In re Estate of Katana Karisa Madago (Deceased) [2019] KECA 996 (KLR)

Court of Appeal
7 February 2019
983 words in judgment
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The bottom line

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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

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Executive summary

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This was a ruling of the Court of Appeal at Malindi (Visram, Karanja & Koome, JJ.A) on an application by Kadzo Madago and Nyevu Kenga to strike out the record of appeal filed by Charo Katana Kenga on 5th July, 2017 in an appeal arising from the estate of Katana Karisa Madago alias Katana Karisa Vengo (deceased), following the High Court at Malindi (Chitembwe, J.) judgment of 31st October, 2016 in H.C. Succ. Cause No. 106 of 2014 and a ruling of 22nd February, 2017. The High Court had directed the respondent to deposit an original title deed and to file his record of appeal within 60 days. He filed it out of time and without leave, attributing the delay to financial constraints. The application was brought within the 30-day window under Rule 84 of the Court of Appeal Rules. The court deprecated the applicants' sloppy drafting invoking inapplicable provisions of the Civil Procedure Act and Appellate Jurisdiction Rules, but, guided by Article 159(2)(d) on substantive justice, located the application within Rule 84. Holding that an appeal filed out of time without leave is incompetent, and that arguments about whether delay was inordinate, chances of success and prejudice belong before a single Judge under Rule 4, the court allowed the application and struck out the record of appeal, with no order as to costs. The judgment was delivered at Mombasa on 7th February, 2019.

Questions the Court framed

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

  1. 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

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01

Whether an appeal filed out of time without leave is competent

Holding

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.

Reasoning

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.

p. 2
02

Whether the court would overlook procedural defects in the applicants' application

Holding

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.

Reasoning

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.

p. 1

Legal principles established

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  • 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

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  1. 1.The record of appeal filed by the respondent on 5th July, 2017 is struck out
  2. 2.No order as to costs

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
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

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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

p. 2

Costs

No order as to costs

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.

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.
p. 2incompetence of appeal filed out of time
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.
p. 2correct sequencing of Rule 4 enlargement application before resisting Rule 84 strike-out
This sloppiness resumably based on the practice of copy pasting must be deprecated.
p. 1deprecated practice of copy-pasting wrong provisions in applications
We therefore, order the appeal to be and is hereby struck out with no order as to costs.
p. 2final orders

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, "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.