Mwangi v Karanja & 2 others
The bottom line
#Kenya's Court of Appeal refused to strike out a notice of appeal, ruling that a party who delays acknowledging service cannot then claim it was served late.
What this practically means
#Executive summary
#Key legal issues
#Whether Rule 77(1) service requirement was breached
The court found no breach; the notice was served on the respondents' advocates' offices on 21st January 2019, within seven days of filing, and only the acknowledgement of receipt was delayed by the applicant.
The respondents deponed that service occurred on 21st January 2019 but the applicant's advocates only stamped the notice as received on 30th January 2019. The applicant did not sufficiently counter or controvert this assertion, so the court accepted the respondents' account and found the delay was of the applicant's own making.
Consequences of non-service within Rule 77(1) and whether it is excusable
While non-service in time ordinarily attracts striking out, the failure may be excused for good reason shown by the appellant.
The court acknowledged that Rule 77(1) is mandatory and that precedent settles striking out as the consequence of non-service, but relying on Pattni, Salat and Mulwa, held that the court retains discretion to excuse late service where the appellant satisfies it that the failure was excusable.
Legal principles established
#- Rule 77(1) of the Court of Appeal Rules is couched in mandatory terms, but failure to serve a Notice of Appeal in time may be excused for good reason if the appellant satisfies the court that it was excusable.
- Where service of a notice of appeal was effected on time but receipt was acknowledged late by the recipient, the delay is attributable to the recipient and is no ground for striking out the notice.
Court orders
#- 1.The application dated 11th February 2019 is dismissed
- 2.No order as to costs
- On appeal from
- Environment & Land Court of Kenya at Nakuru
- ELC Case No. 316 of 2012 (Formerly HCCC No. 51 of 2012)
- Jurisdiction invoked
- Section 3A of the Appellate Jurisdiction Act and Rules 42, 43, 77(1), 79(3) & 84 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi v Karanja & 2 others", Case Analysis (2022). Civil Application 15 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/425/eng@2022-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.