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Court of AppealPartially AllowedCivil Application No. 65 of 2019

Julius Kabaruku Ndundi & another v Najmudin Noorali Mohammedali & another [2021] KECA 670 (KLR)

Court of Appeal
23 April 2021
837 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal (Nambuye, Asike-Makhandia and Kantai, JJA) on a motion dated 30th July 2019 by Julius Kabaruku Ndundi and two others seeking to strike out a notice of appeal dated 28th June 2019, lodged on 1st July 2019 by the respondents against the judgment of Angote J of the Environment and Land Court at Malindi delivered on 26th June 2019 in Malindi ELC No. 174 of 2012 (OS) heard with Malindi ELC No. 204 of 2013 (OS). The applicants contended that the notice of appeal was served on them on 26th July 2019, far beyond the seven days prescribed by Rule 77 of the Court of Appeal Rules, with no explanation for the delay. The respondents filed no papers in opposition. The court held that the respondents had complied with Rule 75 by lodging the notice within fourteen days of the decision, but failed to satisfy Rule 77, which requires service on all persons directly affected before or within seven days after lodging. Noting that the application was filed within the thirty-day window under Rule 84, and applying its earlier decision in MAE Properties Ltd v Joseph Kibe on the indispensability of compliance with the Rules' timelines, the court found the intended appeal incompetent. It struck out the notice of appeal and any record of appeal premised on it, with costs to the applicants. The judgment was delivered at Nairobi on 23rd April 2021 as a single ruling of the whole court, with no separate opinions or dissents. It binds the High Court and other subordinate tribunals on the mandatory character of the service timeline in Rule 77.

Questions the Court framed

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

  1. 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. 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. 3.Whether the application to strike out was brought within the thirty-day window under Rule 84

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The notice of appeal dated 28th June 2019 and any record of appeal premised on it is struck out with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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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

p. 2

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

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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.

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.
p. 2Final orders - striking out of notice of appeal
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.
p. 2Mandatory nature of Court of Appeal Rules timelines
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.
p. 2Distinction between lodging (Rule 75) and service (Rule 77) of a notice of appeal

Issues in the judgment

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minor

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.

minor

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

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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, "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.