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Court of AppealPartially AllowedCivil Application No. E248 of 2020

The Board of Trustees of Local Authorities Provident Fund & Another v Kenya County Government Workers Union & 67 Others

Court of Appeal
23 April 2021
5,477 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out a late notice of appeal, confirming that filing deadlines are strict and cannot be excused by general fairness arguments.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Ouko, P., Nambuye and Asike-Makhandia, JJ.A.) on a Notice of Motion dated 19th August 2020 brought under Rules 84, 75 and 72 of the Court of Appeal Rules 2010, seeking to strike out a Notice of Appeal dated 22nd July 2020 filed by the 1st-8th respondents against a composite ruling of the Employment and Labour Relations Court (M. Onyango, J.) of 3rd July 2020 consolidating three pension-related petitions. The applicants contended the notice of appeal and record of appeal were filed and served out of time, were incompetent, motivated by ulterior purpose and an abuse of process. The respondents conceded non-compliance with the timelines in Rules 75(2), 77(1) and 90(1) but urged the Court to invoke the overriding objective, Article 159(2)(d), the Court's inherent powers and Rule 4 discretion to save the appellate process, citing Covid-19 online-filing difficulties. The Court held that the saving parameters invoked belong to Rule 4 applications and cannot cure lapses in a Rule 84 strike-out application; that timeliness of filing goes to jurisdiction; and that the respondents' inaction once the complaints were raised was inexcusable, no extension-of-time application having been made. The application was allowed as prayed and the Notice of Appeal was struck out with costs. The decision binds lower courts on the mandatory character of the appellate filing and service timelines and the limits of technicality-saving doctrines.

Questions the Court framed

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

  1. 1.Whether the Notice of Appeal dated 22nd July 2020 was lodged within the fourteen days prescribed by Rule 75(2)
  2. 2.Whether the Notice of Appeal was served within seven days as required by Rule 77(1)
  3. 3.Whether the record of appeal was served within the time prescribed by Rule 90(1)
  4. 4.Whether the overriding objective, Article 159(2)(d) and the Court's inherent powers can cure the admitted procedural lapses in an application under Rule 84
  5. 5.Whether the impugned Notice of Appeal should be struck out

Key legal issues

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01

Timeliness of the Notice of Appeal under Rule 75(2)

Holding

The notice was admittedly lodged outside the fourteen-day period and was invalid; the lapse goes to jurisdiction and could not be ignored

Reasoning

The ruling was delivered on 3rd July 2020, so the notice was due by 17th July 2020 (with weekend discounts). It was lodged on 22nd July 2020. The Court held that timeliness of filing is a fundamental jurisdictional issue and that no remedial step, such as an extension-of-time application, was taken to regularise the admittedly faulty process.

p. 6
02

Whether saving principles can cure the lapses in a Rule 84 application

Holding

The overriding objective, Article 159(2)(d) and inherent powers cannot be invoked to salvage procedural lapses in a Rule 84 strike-out application; those parameters belong to Rule 4 applications

Reasoning

The Court reviewed its own precedents holding that lodging an appeal out of time is a substantive issue not curable by the overriding objective, and that the '02 principle' must be exercised judicially with proper foundation. It found nothing in the cited principles to excuse the respondents' inaction once the complaints were raised.

p. 7
03

Service of the Notice of Appeal and record of appeal

Holding

Neither the notice nor the record was served within the seven-day periods in Rules 77(1) and 90(1); the lapses vitiate the appellate process

Reasoning

The respondents conceded non-compliance with both service timelines and took no regularising steps, relying instead on saving principles. The Court adopted the Monirei exposition on the mandatory nature of Rule 77(1) and applied the same reasoning to the Rule 90(1) lapse in striking out the notice.

p. 7

Legal principles established

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  • A notice of appeal must be lodged within fourteen days of the decision appealed against; non-compliance is a jurisdictional lapse curable only by extension of time, not by the overriding objective in a Rule 84 application
  • Whether an appeal is filed on time goes to the jurisdiction of the Court; an appeal filed out of time without leave is a proper candidate for striking out
  • Failure to serve a Notice of Appeal within the prescribed time occasions prejudice and Rule 77(1) is couched in mandatory terms

Court orders

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  1. 1.The Notice of Appeal dated 22nd July 2020, filed in the Employment and Labour Relations Court and served upon the Applicant's counsel on 13th August 2020, is struck out 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
majority
majority
On appeal from
Employment and Labour Relations Court
Nairobi Petition No. 222 of 2019
Jurisdiction invoked
Rules 75, 77(1), 84 and 90(1) of the Court of Appeal Rules 2010

Relief refused

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Respondents' invitation to apply overriding objective, Article 159(2)(d) and inherent powers to save the appellate process

Those parameters fall for consideration under Rule 4 applications, not Rule 84 strike-out applications; no remedial steps were taken

p. 7

Costs

Application allowed as prayed; Notice of Appeal struck out with costs.

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.

In the result, we find merit in the applicants' application. It is allowed as prayed: that Notice of Appeal dated 22nd July, 2020 and filed in the Employment and Labour Relations Court and served upon the Applicant's counsel on 13th August, 2020 is hereby struck out with costs.
p. 7Final orders - strike out of Notice of Appeal
issue as to whether or not an appeal is filed on time is a fundamental issue as it goes to the jurisdiction of the Court
p. 7Timeliness and jurisdiction
That would explain why Rule 77 (1) of the Court of Appeal Rules is couched in mandatory terms.
p. 6Mandatory service of Notice of Appeal
the overriding principle is not a panacea for all ills and in every situation, and that proper basis must be laid before the Court can invoke the same in favor of a party
p. 6Limits of the overriding objective
extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court
p. 7Extension of time principles (Salat)

Issues in the judgment

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minor

Salat case cited with inconsistent years (2013 and 2014) for what appears to be the same decision

minor

Background recites Petition No. 213 of 2019 filed 8th November 2019 but styled 'Okiya Omtatah Okoiti vs. The County Governments Retirement Scheme & 152 Others' with differing numbering from the heading

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, "The Board of Trustees of Local Authorities Provident Fund & Another v Kenya County Government Workers Union & 67 Others", Case Analysis (2021). Civil Application No. E248 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1087/eng@2021-04-23

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