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Court of AppealPartially AllowedCivil Application 183 & 184 of 2020 (Consolidated)

Kikambala Development Company Limited & 4 others v Director of Public Prosecutions & 4 others; Kikambala Development Company Limited & 10 others (Interested Parties)

Court of Appeal
16 December 2022
2,264 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This consolidated ruling of the Court of Appeal at Mombasa (Kairu, Nyamweya and Lessit, JJA) determined two applications dated 26 June 2020 seeking to strike out a Notice of Appeal dated 20 May 2020, lodged by the Director of Public Prosecutions against the judgment of Ogola, J of 12 May 2020 in Constitutional Petition No. 1 of 2019 (Anti-Corruption and Economic Crimes Division, Mombasa). The underlying dispute concerned a failed land conveyance in which advocate Joseph Karanja Kanyi, acting for Kikambala Development Company Limited, gave a professional undertaking that saw KShs 70,000,000 transferred as a deposit; the EACC investigated the loss of public funds, leading to civil and criminal proceedings. The applicants argued that the DPP served the Notice of Appeal three days late, contrary to Rule 79(1) of the Court of Appeal Rules, without prior extension of time, and that the delay was unexplained. The DPP admitted the three-day delay, citing covid-19 containment measures, and pointed to a pending application for enlargement of time (Civil Application No 59 of 2020). The court held that Rule 79(1) is mandatory and that failure to serve within the prescribed period is fatal, following Stephen Kinoro Kamau v Wanjiku Kinuthia. It allowed both applications but suspended the striking-out order pending the outcome of the DPP's extension-of-time application, which it directed be heard on a priority basis. No costs order was made.

Questions the Court framed

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

  1. 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

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01

Whether failure to serve a Notice of Appeal within seven days as required by Rule 79(1) is a fatal defect

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Civil Application No 183 of 2020 and 184 of 2020 dated June 26, 2020 is allowed
  2. 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. 3.The Civil Application No 59 of 2020 be fixed for hearing on a priority basis by the registry

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

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

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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)

p. 5

Costs

No order as to costs was made in the ruling.

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.

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.
p. 5Mandatory nature of Rule 79(1) service requirement
The Civil Application No 183 of 2020 and 184 of 2020 dated June 26, 2020 is allowed.
p. 5Final orders - striking out applications 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.
p. 5Final orders - suspension pending extension-of-time application
The Civil Application No 59 of 2020 be fixed for hearing on a priority basis by the registry.
Final orders - priority hearing of extension application

Issues in the judgment

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minor

Bench listing spells the third judge 'JW LESSIT' but the signature block reads 'J. LESIIT'

minor

The replying affidavit of the 1st respondent is dated January 3, 2020, before the judgment of May 12, 2020 it responds to

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, "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.