Neilsen & another v Nguruman Limited (Civil Appeal (Application) 20 of 2018) [2022] KECA 99 (KLR)
The bottom line
#Kenya's Court of Appeal threw out an attempt to kill an appeal because it was filed years past the mandatory thirty-day deadline under Rule 84.
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 applicants' notice of motion dated 26th August 2020 seeking to strike out the appeal under Rule 84 of the Court of Appeal Rules is competent, given that it was filed more than thirty days after service of the record of appeal
Key legal issues
#Whether an application to strike out an appeal filed outside the thirty-day limit in the proviso to Rule 84 is competent without an extension of time
The application was incompetent because it was filed over two years after the record of appeal was filed, and the applicants never sought extension of time under Rule 4.
The proviso to Rule 84 mandates that applications to strike out a notice of appeal or an appeal be brought within thirty days of service of the notice or record of appeal. This Court has previously held in Joyce Bochere Nyamweya that the proviso is mandatory, and in Salama Beach Hotel that an out-of-time applicant must first seek extension of time under Rule 4. The application here, filed on 26th August 2020 against a record of appeal filed 31st January 2018, was time-barred and no extension was sought.
Legal principles established
#- An application to strike out a notice of appeal or an appeal under Rule 84 must be brought within thirty days of service of the notice of appeal or record of appeal; the proviso is mandatory and an out-of-time application is incompetent unless extension of time is first obtained under Rule 4.
Court orders
#- 1.The notice of motion dated 26th August, 2020 has no merit and is hereby dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- HCCC No. 237 of 2014
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 42(1), 43, 84 and 100(2) of the Court of Appeal Rules
Relief refused
#Striking out/dismissal of the respondent's appeal for want of prosecution
The application under Rule 84 was brought outside the mandatory thirty-day period after service of the record of appeal, without extension of time under Rule 4, rendering it incompetent
Costs
The notice of motion dated 26th August 2020 is dismissed with costs to the respondent.
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.
The instant application was therefore filed over two years after the record of appeal was filed. The applicants did not seek an extension of time to file the application out of time as provided under Rule 4 of this Court’s Rules.
By parity of reasoning, the instant application is incompetent for reason that it was filed outside the stipulated time in the proviso to Rule 84 of this Court’s Rules.
Accordingly, the notice of motion dated 26th August, 2020 has no merit and is hereby dismissed with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Neilsen & another v Nguruman Limited (Civil Appeal (Application) 20 of 2018) [2022] KECA 99 (KLR)", Case Analysis (2022). Notice of Motion dated 26th August 2020 in an appeal from High Court HCCC No. 237 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/99/eng@2022-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.