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Court of AppealAllowedCivil Application No. 27 of 2018

Judith Jemeli Kese v Moi Teaching and Referral Hospital [2021] KECA 776 (KLR)

Court of Appeal
19 March 2021
2,027 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal struck out an appeal because the record was filed late, confirming Kenya's 60-day appeal deadline is strict.

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 (Ouko (P), Nambuye and Sichale JJ.A.) on a notice of motion dated 15th February 2018 by Moi Teaching and Referral Hospital seeking that a notice of appeal lodged by Judith Jemeli Kese against a decision of Marete J. in Kericho ELRC Claim No. 98 of 2016 be deemed withdrawn. The pleadings misdescribed the parties, but the Court, invoking its inherent power under Rule 1(2) of the Court of Appeal Rules and the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act together with Article 159(2)(d) of the Constitution, corrected the litigating positions rather than vitiating the application. The respondent had been granted extension of time to lodge a notice of appeal out of time but thereafter took no steps to lodge the record of appeal within the sixty days prescribed by Rule 82(1). Adopting its earlier decisions in Wathuku and John Mutai Mwangi, the Court held that the sixty-day timeline is strict and that failure to comply is fatal to the appellate process. It further held that Rule 83, which contains no time limit and allows the Court to act on its own motion or on application, was the proper procedural anchor, while Rule 84's thirty-day window rendered it inapplicable. The application was allowed as prayed, the notice of appeal deemed withdrawn, with costs to the applicant.

Questions the Court framed

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

  1. 1.Whether the failure to institute the appeal within sixty days of lodging the notice of appeal, as required by Rule 82(1), is fatal to the appellate process
  2. 2.Whether the Court was properly moved under Rule 83 (as opposed to Rule 84) to deem the notice of appeal withdrawn

Key legal issues

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01

Effect of failure to lodge the record of appeal within sixty days under Rule 82(1)

Holding

Failure to institute the appeal within the prescribed period or the certified proviso period is fatal.

Reasoning

The Court adopted the Wathuku and Mwangi expositions that the sixty-day timeline is strict, designed to ensure timely and efficient disposal, subject only to the proviso excluding registrar-certified time for preparing proceedings where the application for the copy was made and served within thirty days. No such efforts were made by the respondent.

p. 2
02

Proper rule for invoking the Court to deem a notice of appeal withdrawn

Holding

Rule 83, which contains no limitation period, governs; Rule 84 is inapplicable where its thirty-day window has lapsed.

Reasoning

Rule 83 operates as an inbuilt case-management mechanism allowing the Court, on its own motion or on application, to deem withdrawn any notice of appeal not followed by institution of the appeal within the appointed time. Because it carries no time limit, it remains available after Rule 84's thirty-day window has expired, and the defaulting party is liable for costs.

p. 2

Legal principles established

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  • An appeal must be instituted within sixty days of the notice of appeal, or within the certified time excluded under the proviso where proceedings were bespoken and served within thirty days; failure is fatal to the appeal.
  • Rule 83 has no time limit within which an application to deem a notice of appeal withdrawn may be brought, and is the proper procedural anchor for such an application; Rule 84, which carries a thirty-day limit, does not apply.

Court orders

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  1. 1.The notice of appeal dated 29th September 2017 is deemed withdrawn for failure to institute the appeal within the appointed time
  2. 2.The application dated 15th February 2018 is allowed as prayed with costs

The bench

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

William Ouko
W. OukoJA
Currently serving
majority

Wrote the judgment

majority
majority
On appeal from
Employment and Labour Relations Court
Kericho ELRC Claim No. 98 of 2016
Jurisdiction invoked
Rules 42(1), 43(1), 82(1) and (2), 83 and 84 of the Court of Appeal Rules; Article 159(2)(d) of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9)

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.

we have no hesitation in ruling that the respondent’s failure to bring her timeously initiated appellate process within the ambit of either Rule 82 itself or the proviso to Rule 82(1) of the Court’s Rules is fatal to her appellate process as laid.
p. 2Rule 82 timeline
In the result, we find sufficient basis laid for the invocation and application of Rule 83 of this Court’s Rules in favour of the applicant as no record has been filed in furtherance of the respondent’s initiated appellate process.
p. 3Invocation of Rule 83
We allow the application dated 15th February, 2018 as prayed with costs.
p. 3Final orders

Issues in the judgment

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minor

The caption and title misdescribe the litigating positions: Judith Jemeli Kese is named as applicant although the application was brought by Moi Teaching and Referral Hospital; the Court corrected the positions on record.

minor

The application describes the notice of appeal as dated 4th October 2017, while the judgment records it as dated 29th September 2017 and filed on 10th October 2017.

minor

The coram shows delivery 'AT NAIROBI' although the cause heading is 'AT NAKURU'.

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, "Judith Jemeli Kese v Moi Teaching and Referral Hospital [2021] KECA 776 (KLR)", Case Analysis (2021). Civil Application No. 27 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/776/eng@2021-03-19

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