Sosiani Builders Ltd v Nirmal Singh Sidhu Raghbir Singh Sidhu (Suing as the Executor of the will and administrator of the Estate of the late Jagir Singh Sidhu & 5 others [2020] KECA 784 (KLR)
The bottom line
#Kenya's Court of Appeal struck out two appeals for late filing, missing registry stamps, and late service—procedural rules must be followed exactly.
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 notices of appeal dated 31st May 2018 and 4th June 2018 are competent
Key legal issues
#Whether the 1st respondent's notice of appeal dated 31st May 2018, lodged on 26th June 2018, was competent
It was filed out of the fourteen-day period prescribed by Rule 75(1) and (2) without leave of the court, and no application for extension of time had been made; it was incompetent.
Judgment was delivered on 30th May 2018, so the notice was due on or before 13th June 2018. It was lodged on 26th June 2018 with no extension application. The explanation of the Deputy Registrar's transfer was not substantiated, and the respondents should have invoked the court's discretion under Rule 4 rather than file out of time.
Whether the 2nd respondent's notice of appeal dated 4th June 2018, which bore no registry stamp or endorsement, was competent
The notice lacked authentication by the ELC registry and counsel offered no explanation; following Daniel Nkirimpa Monirei v Koilel, it failed the test and was incompetent.
The court adopted its earlier holding in Daniel Nkirimpa Monirei v Koilel that a notice of appeal bearing no rubber stamp or endorsement of the registrar does not pass muster where the authentication deficiency is unexplained. The absence of any explanation from the 2nd respondent's counsel meant the notice was not competent and amenable to being struck out.
Whether both notices of appeal were served within the seven days prescribed by Rule 77(1)
Both notices were served out of time with no application for enlargement of time; late service occasions prejudice by giving the served party a false belief that the matter is concluded.
Rule 77(1) requires service within seven days after lodging the notice of appeal. Neither notice was served within that period and no enlargement was sought. The court reiterated that the purpose of service is to alert parties that the matter has been escalated, and failure to serve in time ambushes the party and occasions prejudice.
Whether the application to strike out complied with the proviso to Rule 84 (thirty days from service of the notice of appeal)
The application, filed 16th July 2018 after service of the 1st respondent's notice on 27th June 2018, was within thirty days of service and complied with the proviso.
The proviso to Rule 84 bars striking-out applications brought more than thirty days after service of the notice of appeal or record of appeal. Service on counsel for the applicant occurred on 27th June 2018 and the motion was filed on 16th July 2018, so the applicant was in time.
Legal principles established
#- A notice of appeal must be lodged within fourteen days of the decision appealed against; where it is filed out of time without leave or an extension application, it is incompetent and liable to be struck out under Rule 84.
- A notice of appeal that bears no rubber stamp or endorsement of the superior court registry is an unauthenticated document that fails the test of competence, particularly where the deficiency is unexplained.
- Rule 77(1) is mandatory: an intended appellant must serve the notice of appeal within seven days after lodging it, and failure to do so without enlargement of time renders the notice incompetent.
Court orders
#- 1.The applicant's notice of motion dated 16th July 2018 seeking the striking out of the respondents' notices of appeal is allowed
- 2.The notices of appeal dated 31st May 2018 and 4th June 2018 filed by the 1st and 2nd respondents respectively are struck out
- 3.Costs of the application to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote a separate short concurring ruling agreeing with J. Mohammed JA's draft ruling that the respondents' notices of appeal should be struck out, and noting the ruling was delivered under Rule 32(3) because Githinji JA had retired.
I have read the draft ruling prepared by J Mohammed JA and I am in agreement with the conclusion that the applicant’s notice ofmotion seeking the striking out of the respondents’ notices of appeals should be allowed.p. 4
Wrote the judgment
Authored the principal ruling holding that both notices of appeal were incompetent - the first filed out of time without leave, the second lacking registry authentication - and both served out of time, and struck them out.
From the above analysis, it is clear that the two notices of appeal do not muster and are therefore not competent.p. 4
- On appeal from
- Environment & Land Court of Kenya at Eldoret
- E.L.C. No. 618 'B' of 2012
- Jurisdiction invoked
- Rule 84 of the Court of Appeal Rules (application to strike out a notice of appeal), read with Rule 32(3)
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.
In the circumstances, the notice of appeal dated 31st May, 2018 and filed by the 1st respondent was out of time, incompetent and amenable to be struck out.
This glaring authentication deficiency has not been explained by learned counsel for the applicant. In our view, this document does not pass muster. The Notice of Appeal therefore, fails the test.
Failure to serve a party with a Notice of Appeal within the time prescribed by law gives a party false belief that the matter has been concluded, only to be ambushed later with the record of appeal in which the said notice is tucked away somewhere in the record.
In any case, the respondents ought to have sought leave of the Court to appeal out of time under Rule 4 of the Court Rules, using that explanation to invoke the Court’s discretion. This was not done.
The final orders shall therefore be that the applicant’s notice of motion dated 16th July, 2018 seeking the striking out of the respondents’ notices of appeal shall be and is hereby allowed, and the notices of appeal dated 31st May 2018 and 4th June 2018 filed by the 1st and 2nd respondents respectively are hereby struck out with costs to the applicant.
Issues in the judgment
#The motion's face indicated the judgment was delivered on 25th May 2018, but the court found it was actually delivered on 30th May 2018, a discrepancy corrected on the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sosiani Builders Ltd v Nirmal Singh Sidhu Raghbir Singh Sidhu (Suing as the Executor of the will and administrator of the Estate of the late Jagir Singh Sidhu & 5 others [2020] KECA 784 (KLR)", Case Analysis (2020). Civil Application No. 70 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/784/eng@2020-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.