Kang'ethe & 5 others v Ng’ng’a; Kang'ethe & 11 others (Proposed Objectors) (Civil Application E043 of 2024) [2024] KECA 630 (KLR)
The bottom line
#The Court of Appeal dismissed an application to file a late appeal because the applicants never filed a Notice of Appeal first.
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 applicants should be granted leave to appeal out of time against the Ruling delivered on 11th December 2023
- 2.Whether the draft Memorandum of Appeal should be admitted out of time and deemed duly filed upon payment of requisite court fees
- 3.Whether an application for extension of time can be entertained where no Notice of Appeal was ever filed or leave sought for its late filing
Key legal issues
#Whether leave to appeal out of time can be granted where no Notice of Appeal was filed and no leave for its late filing was sought
No. The application inverts the prescribed procedure and is incompetent and an abuse of the court process.
The appellate process is underpinned by statutes, Rules and Procedures, and parties must play within the set out procedures, rules and practices. The first step in an appeal is filing a Notice of Appeal within the stipulated period or seeking leave to file it out of time. Seeking extension of time to file an appeal without ever filing a Notice of Appeal, or seeking leave for its late filing, is to put the cart before the horse - an absurdity unknown to the Rules, Procedures and Practices, and an attempt to overturn the set out Rules and Procedures. The application was therefore dismissed with costs.
Legal principles established
#- A party must follow the prescribed appellate procedure: the first step is to file a Notice of Appeal within the stipulated period, or seek leave to file it out of time, before seeking extension of time to file the appeal itself.
- A party cannot set their own rules and practice in appellate procedure and expect to benefit from them; an application to file an appeal out of time without a Notice of Appeal or leave therefor is incompetent and an abuse of process.
Court orders
#- 1.The Notice of Motion dated 20th March 2024 is dismissed with costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- null
- null
- Jurisdiction invoked
- Inherent jurisdiction and the Court of Appeal Rules governing extension of time to appeal against the Ruling delivered on 11th December 2023
Relief refused
#Leave to appeal out of time against the Ruling delivered on 11th December 2023
The application was incompetent because no Notice of Appeal had been filed nor leave sought to file it out of time; the applicants sought to put the cart before the horse.
Admission of the draft Memorandum of Appeal out of time and deeming it duly filed upon payment of court fees
Such a process is an absurdity not known under the Rules, Procedures and Practices, and an attempt to overturn the set out Rules and Procedures.
Costs
The application is dismissed with costs to the Respondent.
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.
The first step is the process of undertaking an Appeal is to file a Notice of Appeal within the stipulated period and if not possible to seek leave to file the same out of time.
The applicant’s application is seeking to be allowed to file an appeal out of time, when he did not file a Notice of Appeal or sought an extension within which to file the same out of time.
The application is therefore incompetent and an outright abuse of the court process. It is dismissed with costs to the Respondent. It is so ordered.
Issues in the judgment
#The judgment, as reproduced, does not state the case number, the parties' names, or the lower court from which the intended appeal lies; only the date of the Ruling appealed from (11th December 2023) is given.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kang'ethe & 5 others v Ng’ng’a; Kang'ethe & 11 others (Proposed Objectors) (Civil Application E043 of 2024) [2024] KECA 630 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/630/eng@2024-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.