Tarzan Limited v Koima Developers Limited & another (Civil Appeal (Application) E011 of 2022) [2023] KECA 1115 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a union's attempt to kill an appeal because the application was filed over a year late, past the mandatory 30-day deadline.
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 application is competently before the court
- 2.Whether the application to strike out the notice of appeal and record of appeal has merit, given the delays in service of the notice of appeal and filing of the record of appeal
Key legal issues
#Competence of the application under the proviso to Rule 84 (2010 Rules) / Rule 86 (2022 Rules)
The application, filed on September 15, 2022, more than 30 days after service of the notice of appeal on May 8, 2021, was fatally defective and had to be struck out.
Rule 84 of the 2010 Rules and Rule 86 of the 2022 Rules contain a mandatory proviso barring strike-out applications brought more than thirty days after service of the notice of appeal or record of appeal. The court relied on its prior decisions in Salama Beach Hotel and William Mwangi Ngaruki holding that non-compliance renders such applications incompetent unless leave is obtained. The applicant conceded no such leave was sought; hence the court struck out the application itself rather than the notice of appeal.
Nature of the power to strike out an appeal
Striking out is discretionary, draconian, and reserved for plain and obvious cases.
The court framed the striking-out power as discretionary and exceptional, to be exercised on the circumstances of each case. Because the competency question was dispositive, the court did not need to reach the merits of the alleged breaches of Rules 77(1) and 82 in the underlying appeal.
Legal principles established
#- An application to strike out a notice of appeal or an appeal must be brought within thirty days of service of the notice of appeal or record of appeal, and an application filed outside that period is fatally defective.
- Striking out is a draconian remedy exercised only in plain and obvious instances and depends on the circumstances of each case.
Court orders
#- 1.The application dated September 15, 2022 is fatally defective and is hereby struck out
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Rules 77(1), 82, 83 and 84 of the Court of Appeal Rules, 2010 and Sections 3, 3A and 3B of the Appellate Jurisdiction Act
Relief refused
#Striking out of the respondent's notice of appeal dated April 23, 2021 and the record of appeal dated July 28, 2022
The application itself was filed long after the expiry of the mandatory 30-day period from service of the notice of appeal, rendering it fatally defective
Costs of the application borne by the respondent
No costs order was made; the application was struck out without any costs pronouncement
Costs
No costs order made in the judgment
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.
It is trite law that striking out pleadings is a draconian act, which may only be resorted to in plain and obvious instances. The power of this court to strike out an appeal is discretionary and is exercised based on the circumstances of each case.
Parties are bound by the mandatory proviso to Rule 84 of the 2010 Rules and Rule 86 of the 2022 Rules, that the failure to comply with the same renders an application filed thereunder defective.
Accordingly, the application is fatally defective, and is hereby struck out.
Issues in the judgment
#The judgment does not identify the parties' full names, the case number, or the court and judge that rendered the ruling appealed from; the applicant and respondent are identified only through deponents' names.
No costs order appears in the judgment despite the applicant having sought costs of the application.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tarzan Limited v Koima Developers Limited & another (Civil Appeal (Application) E011 of 2022) [2023] KECA 1115 (KLR)", Case Analysis (2023). Not stated in the judgment (application dated September 15, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1115/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.