Kikambala Development Company Limited & 4 others v Director of Public Prosecutions & 4 others; Kikambala Development Company Limited & 10 others (Interested Parties)
The bottom line
#Kenya's Court of Appeal confirmed that late service of a Notice of Appeal is fatal, but paused striking out the DPP's appeal pending its extension-of-time application.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether failure to serve the Notice of Appeal within the time prescribed by Rule 79(1) of the Court of Appeal Rules is a fatal defect justifying striking out of the Notice of Appeal
Key legal issues
#Whether failure to serve a Notice of Appeal within seven days as required by Rule 79(1) is a fatal defect
Yes - the requirement is mandatory and non-service within the prescribed period is fatal, though the court may enlarge time under Rule 4 on a proper application.
The court found no dispute that the DPP served the Notice of Appeal three days late without prior extension of time. It held Rule 79(1) is mandatory in terms and that failure to serve within the prescribed period is fatal, citing settled Court of Appeal authority. However, because the DPP had a pending application for enlargement of time (Civil Application No 59 of 2020), the court suspended the striking-out order pending that application's outcome, and declined to delve into its merits.
Legal principles established
#- Service of a Notice of Appeal under Rule 79(1) of the Court of Appeal Rules is mandatory and failure to serve within the prescribed period is fatal to the notice.
Court orders
#- 1.The Civil Application No 183 of 2020 and 184 of 2020 dated June 26, 2020 is allowed
- 2.The order allowing the applications dated June 26, 2020 is suspended pending the outcome of Civil Application No 59 of 2020 filed by the 1st Respondent
- 3.The Civil Application No 59 of 2020 be fixed for hearing on a priority basis by the registry
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court at Mombasa
- Anti-Corruption and Economic Crimes Division Constitutional Petition No. 1 of 2019
- Jurisdiction invoked
- Rules 3, 42, 77(1) & 84 of the Court of Appeal Rules, 2010 (now 3, 46, 79 and 86 of the 2022 Rules) and section 57 of the Interpretation and General Provisions Act
- Consolidated with
- Civil Application 184 of 2020
Relief refused
#Immediate striking out of the Notice of Appeal dated 20th May 2020
The striking-out order was suspended pending determination of the DPP's pending application for enlargement of time (Civil Application No 59 of 2020)
Costs
No order as to costs was made in the ruling.
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.
Rule 79(1) is couched in mandatory terms that service of the Notice of Appeal must always be effected upon the respondent and all parties affected by it in accordance with the Rule. Failure to serve within the period prescribed by Rule 79 (1) is fatal.
The Civil Application No 183 of 2020 and 184 of 2020 dated June 26, 2020 is allowed.
The order allowing the applications dated June 26, 2020 in (1) above is suspended pending the outcome of Civil Application No 59 of 2020 filed by the 1st Respondent.
The Civil Application No 59 of 2020 be fixed for hearing on a priority basis by the registry.
Issues in the judgment
#Bench listing spells the third judge 'JW LESSIT' but the signature block reads 'J. LESIIT'
The replying affidavit of the 1st respondent is dated January 3, 2020, before the judgment of May 12, 2020 it responds to
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kikambala Development Company Limited & 4 others v Director of Public Prosecutions & 4 others; Kikambala Development Company Limited & 10 others (Interested Parties)", Case Analysis (2022). Civil Application 183 & 184 of 2020 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1374/eng@2022-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.