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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents' Notice of Appeal dated 11th January 2019 was served out of time contrary to Rule 77(1) of the Court of Appeal Rules
- 2.Whether the Notice of Appeal should be struck out for late service
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
Relief refused
#Striking out of the respondents' Notice of Appeal dated 11th January 2019
The court believed the respondents' account that the notice was served on time on 21st January 2019 and that the applicant deliberately acknowledged receipt late
Costs
No order as to costs - the application was dismissed with no order as to costs
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.
No doubt the provision is couched in mandatory terms.
We however hasten to add that failure to serve the Notice of Appeal in time may be excused for good reason(s), if the appellant is able to satisfy the Court that the same was excusable.
We are inclined to believe the position taken by the respondents that the applicant deliberately acknowledged receipt of the documents late with the sole intent of undermining the intended appeal.
The upshot of all the above is that we find no merit in the application and the same is hereby dismissed with no order as to costs.
Issues in the judgment
#Court station inconsistency: cause title says Nakuru, delivery clause says Nairobi.
Coram lists 'MSA MAKHANDIA' but signature block reads 'ASIKE–MAKHANDIA'.
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.