Munguti & another v Simiyu & another (Suing as administrators of the Estate of Frank Mwasi Mwabaga (Deceased) (Civil Appeal (Application) E039 of 2023) [2024] KECA 340 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a late attempt to strike out an appeal because it was filed months past the strict 30-day deadline, confirming that deadline is non-negotiable without prior leave.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the application under the proviso to rule 86
The application was filed about 9 months after service of the notice of appeal, far beyond the 30-day limit, and was therefore defective and incompetent.
The proviso to rule 86 bars any application to strike out a notice of appeal or an appeal brought more than thirty days after service of the notice or record of appeal. The notice was served on 21st October 2022 and the application was dated 21st July 2023. The court, following its own precedents, held the mandatory proviso binds parties and non-compliance is fatal. No leave to file out of time had been sought.
Alleged irregularity of the certificate of delay
The court declined to pronounce on the regularity of the certificate of delay in the absence of evidence that the respondents misled the Deputy Registrar, who was not a party to the application.
The applicants alleged the Deputy Registrar was misled into issuing the certificate of delay. The court found no material demonstrating this, noted the Deputy Registrar was not a party and had not been called to answer the allegations, and held the court cannot make presumptions about the certificate's regularity.
Whether filing for review waived the right of appeal
The court declined to determine this question, holding it is a matter for the main appeal.
The applicants argued that by pursuing review of the impugned judgment the respondents waived their right of appeal. The court found this could not be determined on an interlocutory striking-out application and deferred it to the substantive appeal.
Legal principles established
#- An application to strike out a notice of appeal or an appeal must be brought within 30 days of service of the notice of appeal or record of appeal; non-compliance renders the application fatally defective and incompetent.
- An application to strike out a notice of appeal brought after 30 days from service is incompetent unless leave to file out of time is first sought and obtained.
Court orders
#- 1.The application dated July 21, 2023 was dismissed as filed out of time, fatally defective and incompetent
- 2.Costs of the application awarded to the respondents
- Jurisdiction invoked
- Inherent/appellate jurisdiction under rules 33, 44, 45, 84, 85 and 86 of the Court of Appeal Rules, 2022 and Order 45 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munguti & another v Simiyu & another (Suing as administrators of the Estate of Frank Mwasi Mwabaga (Deceased) (Civil Appeal (Application) E039 of 2023) [2024] KECA 340 (KLR)", Case Analysis (2024). Notice of Motion dated July 21, 2023 (Court of Appeal, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/340/eng@2024-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.