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Court of AppealPartially AllowedCivil Application No. 42 of 2019

Sheikh Ali Taib & another v Selina Wekesa & another [2021] KECA 713 (KLR)

Court of Appeal
16 April 2021
1,538 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Court of Appeal struck out an appeal filed just three days late because proof of serving a key procedural letter was missing.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Nambuye, Asike-Makhandia and Kantai, JJ.A.) on a notice of motion dated 21st May 2019 under Rules 82 and 84 of the Court of Appeal Rules, by which the applicants sought the striking out of the memorandum and record of appeal in Mombasa Civil Appeal No. 55 of 2019, lodged by Selina Wekesa against the High Court (Matheka J) decision of 6th December 2018 in Mombasa ELC No. 454 of 2002. The applicants contended that although a notice of appeal was timeously filed and served, no letter bespeaking proceedings was served on them, and that the record of appeal was filed out of time notwithstanding a certificate of delay showing receipt of certified proceedings on 24th January 2019. The respondent conceded a three-day delay, attributing it to follow-ups with the court, and annexed the letter bespeaking proceedings dated 19th December 2018, copied to the opposite party. The court, adopting its prior decisions on Rule 82, held that the sixty-day timeline is strict; that reliance on the proviso requires proof that the application for proceedings was in writing and served on the respondent within thirty days of the decision; that the respondent failed to prove such service; and that a certificate of delay cannot rescue an appellant who has not met the proviso's requirements. It further held that the three-day delay could only be excused on an extension-of-time application, not in a striking-out application. The application was within the thirty-day window in Rule 84. The application was allowed and the appeal struck out with costs to the applicants, the respondent being left to resuscitate her appellate process.

Questions the Court framed

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

  1. 1.Whether the respondent's record of appeal was filed out of time under Rule 82(1) of the Court of Appeal Rules
  2. 2.Whether the respondent could rely on the proviso to Rule 82(1) having failed to prove service of the letter bespeaking proceedings on the opposite party within thirty days of the decision
  3. 3.Whether the applicants' striking-out application was brought within the thirty-day period prescribed by Rule 84

Key legal issues

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01

Compliance with Rule 82(1) and (2) of the Court of Appeal Rules

Holding

The respondent failed to demonstrate that the letter bespeaking proceedings was served on both the Deputy Registrar and the opposite party within thirty days of the decision, so she could not rely on the proviso to Rule 82(1), and the record of appeal filed out of time was fatal to the appeal.

Reasoning

Rule 82(1) requires lodging the record of appeal within sixty days of the notice of appeal, subject to the proviso excluding time certified by the registrar. The proviso is only available where the application for proceedings was in writing and served on the respondent within thirty days of the decision. The respondent annexed the letter dated 19th December 2018 and it was copied to the opposite party, but service upon them was not proved. A certificate of delay cannot aid an appellant who has not satisfied the proviso's service requirement.

p. 2
02

Timeliness of the striking-out application under Rule 84

Holding

The application filed on 21st May 2019 was within the thirty-day period, the applicants having been served with the record of appeal on 25th April 2019, so reliance on Rule 84 was well founded and sustainable.

Reasoning

Rule 84 bars a striking-out application brought more than thirty days after service of the notice of appeal or record of appeal. The applicants deposed that they were served with the record of appeal dated 29th March 2019 on 25th April 2019. Computing thirty days from that date, the application filed on 21st May 2019 was within time, establishing the applicants' access to the relief sought.

p. 2

Legal principles established

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  • The sixty-day timeline in Rule 82 for instituting an appeal is strict, and an appellant cannot rely on the proviso excluding time unless the application for proceedings was in writing and served on the respondent within thirty days of the decision.
  • An unexplained failure to comply with Rule 82(1) and (2) is fatal to the appellate process and renders the appeal liable to be struck out under Rule 84.
  • A short delay of a few days may be excusable on an application for extension of time but cannot save a record of appeal in a striking-out application under Rule 84.

Court orders

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  1. 1.The appeal be and is hereby struck out with costs to the applicant

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya
Mombasa ELC No. 454 of 2002
Jurisdiction invoked
Rules 82 and 84 of the Court of Appeal Rules (application to strike out an appeal for non-compliance with Rule 82)

Relief refused

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Respondent's attempt to rely on the certificate of delay and the proviso to Rule 82(1) to save the record of appeal

Failure to prove service of the letter bespeaking proceedings on the opposite party within thirty days of the decision

p. 2

Costs

The appeal be and is hereby struck out with costs to the applicant.

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 explanation proffered of delay of 3 days which according to them was inadvertent and second that it is not inordinate suffices for an application for extension of time and not applications of this nature.
p. 2Distinction between extension-of-time applications and striking-out applications
It was incumbent upon the respondent to provide that proof. They have failed to do so. The certificate of delay relied upon by them does not therefore aid the cause of the respondent’s timeously initiated appellate process.
p. 2Burden of proving service of letter bespeaking proceedings
Consequently, we allow the application. Accordingly, the appeal be and is hereby struck out with costs to the applicant.
p. 3Final orders

Issues in the judgment

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minor

The heading places the court at Mombasa but the judgment states it was dated and delivered at Nairobi.

minor

The notice of appeal is described as filed by 'the respondent' while the same party (Selina Wekesa) is elsewhere described as the appellant in the underlying appeal, an internal inconsistency in party descriptors.

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, "Sheikh Ali Taib & another v Selina Wekesa & another [2021] KECA 713 (KLR)", Case Analysis (2021). Civil Application No. 42 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/713/eng@2021-04-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.