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Court of AppealPartially AllowedNotice of Motion Application dated 31st October 2022· [2024] KECA 705 (KLR)

Bernard Onkoba T/A Betico Auctioneers & 2 others v Ezekiel Kemue Orina

Court of Appeal of Kenya
21 June 2024
HOHannah OkwenguHOH. A. OmondiJNJoel Ngugi
2,467 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out an appeal filed months late, confirming that appeal deadlines are strict and missing them can end your appeal entirely.

What this practically means

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Executive summary

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This was a Notice of Motion dated 31st October 2022, brought under rules 42, 43, 82(1) and 84 of the Court of Appeal Rules, seeking to strike out the respondent's Record of Appeal lodged on 25th August 2022. The appeal arose from a judgment of the High Court at Kisii (Ougo, J.) delivered on 7th October 2021 in Kisii HCCA No. 30 of 2019, itself an appeal from a subordinate court ruling of 2nd February 2019. The respondent filed a Notice of Appeal on 9th November 2021, nineteen days beyond the fourteen-day period, and did not serve it on the applicants. The certified copies of proceedings were furnished on 8th March 2022; even crediting that certified period, the Record of Appeal filed on 25th August 2022 was more than five months late, and the request for proceedings was never in writing nor served as required. The respondent opposed, arguing the striking-out application itself was incompetent under the mandatory 30-day proviso, relying on William Mwangi Nguruki and Salama Beach Hotel. The Court held that the proviso to Rule 86 runs from service of the notice or record of appeal, and accepting service of the record on 24th October 2022, the application filed on 31st October 2022 was competent. Applying Joyce Bochere Nyamweya, Mae Properties and related authority, the Court found no steps had been taken to institute the appeal within time, deemed the notice of appeal withdrawn under Rule 85, and struck out the appeal with costs to the applicant.

Key legal issues

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01

Competency of the striking-out application under the proviso to Rule 86

Holding

The application was competently before the Court because the record of appeal was served on 24th October 2022 and the application was filed on 31st October 2022, within 30 days of service.

Reasoning

The respondent argued that the application, filed 31st October 2022, was out of time relative to the notice of appeal of 9th November 2021, invoking the mandatory proviso. The Court found the respondent's affidavit failed to establish when the notice of appeal was filed and served. Accepting the applicant's position that the record of appeal was served on 24th October 2022, the application filed on 31st October 2022 fell within the 30-day window.

p. 4
02

Failure to institute the appeal within the prescribed time

Holding

The notice of appeal was filed out of the 14-day period, was never served on the applicants, and the record of appeal was filed more than five months after the certified period for preparation of proceedings lapsed; the appeal was therefore incompetent and liable to be struck out.

Reasoning

The notice of appeal lodged on 9th November 2021 was 19 days after the 7th October 2021 judgment and was not served as required. Even excluding the certified period for typing proceedings, which expired on 8th March 2022, the record of appeal filed on 25th August 2022 exceeded the 60-day period by over five months. Under Rule 85 the notice was deemed withdrawn.

p. 5
03

Nature of the power to strike out an appeal

Holding

Striking out is a draconian remedy exercised in plain cases, but strict observance of the Court's timelines is indispensable to the orderly administration of justice.

Reasoning

The Court reiterated that the power to strike out is discretionary and case-specific, yet the timelines in the Court of Appeal Rules are mandatory and must be strictly observed; a party in default must seek extension of time under Rule 4. Deeming an unprosecuted notice of appeal withdrawn serves the objective of cleaning the Court's record and ensuring timely dispensation of justice.

p. 3

Legal principles established

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  • 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 the record of appeal; failure to comply renders the application fatally defective unless leave is obtained under Rule 4.
  • Where a party fails to institute an appeal within the time prescribed after lodging a notice of appeal, the notice of appeal is deemed withdrawn and the appeal is liable to be struck out.
  • A party whose application is caught by the lapse of the 30-day period in the proviso must seek extension of time under Rule 4 rather than proceed with an out-of-time striking-out application.

Court orders

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  1. 1.The application dated 31st October 2022 is allowed
  2. 2.The Record of Appeal dated 29th November 2021 and lodged on 25th August 2022 is struck out
  3. 3.Costs of the application to the applicant
On appeal from
High Court of Kenya at Kisii
Kisii HCCA No. 30 of 2019
Jurisdiction invoked
Rules 42, 43, 82(1) and 84 of the Court of Appeal Rules (strike-out jurisdiction under Rule 86, Court of Appeal Rules, 2022)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bernard Onkoba T/A Betico Auctioneers & 2 others v Ezekiel Kemue Orina", Case Analysis (2024). Notice of Motion Application dated 31st October 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/705/eng@2024-06-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.