Wanjau v County Government of Uasin Gishu (Civil Application E008 of 2022) [2023] KECA 359 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an application to kill a stale notice of appeal because it was filed three years too 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 notice of appeal dated February 27, 2019 should be struck out for failure to lodge the appeal within 60 days as required by Rule 82(1) of the Court of Appeal Rules
- 2.Whether the respondent's explanations (Covid-19 pandemic, post-2022-election restructuring, failure of disbursement of funds) excused the delay in lodging the appeal
- 3.Whether the applicant's striking-out application was incompetent for having been made outside the 30-day time limit from service of the notice of appeal
Key legal issues
#Consequence of failure to lodge an appeal within 60 days of filing a notice of appeal
The notice of appeal dies a natural death after 60 days unless the appeal is lodged within the period (as extended by the proviso to Rule 82(1)) or time is extended under Rule 4
Relying on its own prior decision in Mae Properties Limited v Joseph Kibe & Another, the court reiterated that the prescribed consequence of failing to lodge an appeal within 60 days is that the notice of appeal is deemed withdrawn, subject only to the Rule 82(1) proviso excluding time certified by the Deputy Registrar, or a Rule 4 extension order. The court adopted the Mae Properties passage verbatim.
Whether the respondent's explanations excused the inordinate delay
None of the explanations (Covid-19, post-election restructuring, failure of disbursements) justified the delay after the Certificate of Delay issued on April 7, 2022
The court accepted that Covid-19 may have consumed about a year while the wheels of justice were slowed, but found the pandemic did not explain delays after April 7, 2022 when the record was ready. The 2022 elections were held on August 9, 2022, more than four months after the certificate, so restructuring after the elections could not explain the delay. No nexus was established between the alleged failure to disburse funds and the failure to file the appeal.
Competency of the striking-out application for being filed out of time
An application to strike out a notice of appeal must be made within 30 days of service of that notice; the applicant's application, made over three years later, was incompetent and was struck out
Although the court found the respondent lacked a merits answer to the delay, the respondent successfully pointed out the 30-day time limit for such applications. Since the applicant filed the striking-out application more than three years after the notice of appeal was served, outside that limit, the court held it incompetent and struck out the application itself rather than the notice of appeal.
Legal principles established
#- A notice of appeal lapses after 60 days unless the appeal is lodged within that period (as extended by the proviso to Rule 82(1)) or time is extended by a single Judge under Rule 4.
- An application to strike out a notice of appeal must be made within 30 days of service of the notice of appeal; an application filed outside that window is incompetent.
- A party seeking to excuse delay in lodging an appeal must establish a nexus between the events relied upon and the failure to file the appeal timeously.
Court orders
#- 1.The applicant's Notice of Motion dated July 25, 2022 seeking to strike out the Notice of Appeal dated February 27, 2019 is struck out for being filed outside the 30-day time limit
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Inherent jurisdiction of the Court of Appeal over interlocutory applications concerning notices of appeal under the Court of Appeal Rules (Rule 82(1) and Rule 4 invoked)
Relief refused
#Striking out of the Notice of Appeal dated February 27, 2019
The application was incompetent because it was not made within 30 days of service of the notice of appeal; the court did not therefore reach the merits of whether the notice had died under Rule 82(1)
Costs
We make 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.
Absent those supervening circumstances, the notice of appeal dies in the eyes of the law.
The applicant should have moved the court within 30 days. As the application was filed outside the time-limit set in law, the same is incompetent. The same is therefore struck out.
We make no order as to costs.
Issues in the judgment
#The judgment states the application invited the Court to strike out the notice of appeal, but the final orders strike out the application itself; the outcome is therefore that the notice of appeal was not struck out
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjau v County Government of Uasin Gishu (Civil Application E008 of 2022) [2023] KECA 359 (KLR)", Case Analysis (2023). Notice of Motion dated July 25, 2022 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/359/eng@2023-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.