Julius Kabaruku Ndundi & another v Najmudin Noorali Mohammedali & another [2021] KECA 670 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the notice of appeal was served 26 days late, confirming appellate timelines are mandatory.
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 respondents served the notice of appeal on the applicants within the seven days prescribed by Rule 77 of the Court of Appeal Rules
- 2.Whether the notice of appeal and any record of appeal premised on it ought to be struck out for want of timely service
- 3.Whether the application to strike out was brought within the thirty-day window under Rule 84
Key legal issues
#Whether late service of a notice of appeal beyond the seven days prescribed by Rule 77 justifies striking out the notice and any record of appeal premised on it
Yes. Service 26 days after lodging, far outside the seven statutory days, without explanation, renders the intended appeal incompetent and the notice of appeal is struck out.
The court distinguished the two obligations: the respondents had complied with Rule 75 by lodging the notice within fourteen days of the decision, but failed to comply with Rule 77, which requires service on all persons directly affected before or within seven days after lodging. The applicants' motion was filed within the thirty-day window in Rule 84, so it was properly before the court. Relying on MAE Properties Ltd v Joseph Kibe, the court emphasised that the timelines in the Rules are indispensable and command obedience; no explanation for the delay was proffered.
Legal principles established
#- Service of a notice of appeal on all persons directly affected must be effected before or within seven days after lodging the notice, and failure to do so renders the appeal incompetent.
- The timelines in the Court of Appeal Rules, including the timeline for service of a notice of appeal, are mandatory and command strict obedience.
- An application to strike out a notice of appeal for late service must be brought within thirty days from the date of service of the notice of appeal.
Court orders
#- 1.The notice of appeal dated 28th June 2019 and any record of appeal premised on it is struck out with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Malindi
- Malindi ELC No. 174 of 2012 (OS), heard with Malindi ELC No. 204 of 2013 (OS)
- Jurisdiction invoked
- Rules 75, 77 and 84 of the Court of Appeal Rules (application for striking out a notice of appeal)
Relief refused
#The respondents' intended appeal was effectively terminated by striking out of the notice of appeal
Failure to serve the notice of appeal within the seven statutory days under Rule 77 rendered the intended appeal incompetent
Costs
The notice of appeal and any record of appeal premised on the same be and is hereby struck out with costs (costs awarded to the applicants)
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.
Consequently, we are satisfied that the respondents failed to serve the notice of appeal within the prerequisite seven (7) statutory days thus rendering the subsequent appeal incompetent. Accordingly, the notice of appeal and any record of appeal premised on the same be and is hereby struck out with costs.
The timelines appointed for the doing of certain things and taking of certain steps are indispensable to the proper adjudication of the appeals that come before us. The Rules are expressed in clear and unambiguous terms and they command obedience.
In this instant matter, the respondent satisfied the prerequisite of Rule 75 of the of the rules. However, they failed to satisfy the requirements of Rule 77.
Issues in the judgment
#Delivery venue discrepancy: the heading states the court sits at Malindi and the coram lists the parties as at Malindi, but the judgment is dated and delivered at Nairobi.
The judgment labels the applicants (who sought striking out) as 'APPLICANTS' but in the body also refers to them as 'the applicant' and refers to the respondents' intended appeal; there is also an apparent typographical slip referring to 'the applicant' while narrating the respondents' non-service.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Kabaruku Ndundi & another v Najmudin Noorali Mohammedali & another [2021] KECA 670 (KLR)", Case Analysis (2021). Civil Application No. 65 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/670/eng@2021-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.