Kobiro & 2 others v Orina (Civil Appeal (Application) E203 of 2022) [2024] KECA 705 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application to strike out the Record of Appeal was filed within the mandatory 30-day period under the proviso to Rule 86 of the Court of Appeal Rules, 2022, and is therefore competent
- 2.Whether the respondent took the essential steps to institute the appeal within the prescribed timelines, including service of the notice of appeal and the request for proceedings
- 3.Whether the Record of Appeal filed on 25th August 2022 was lodged outside the statutory timeline and ought to be struck out
Key legal issues
#Competency of the striking-out application under the proviso to Rule 86
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.
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.
Failure to institute the appeal within the prescribed time
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.
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 Under Rule 85 the notice was deemed withdrawn.
Nature of the power to strike out an appeal
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.
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.
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 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
#- 1.The application dated 31st October 2022 is allowed
- 2.The Record of Appeal dated 29th November 2021 and lodged on 25th August 2022 is struck out
- 3.Costs of the application to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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)
Relief refused
#Respondent's prayer for dismissal of the striking-out application
The application was found to have been filed within the proviso to Rule 86 because service of the record of appeal occurred on 24th October 2022, and the respondent failed to demonstrate compliance with the timelines for instituting the appeal
Costs
The appeal is struck out with costs to the applicant.
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.
An application seeking to strike out a notice of appeal or an appeal must be made within thirty (30) days of service of the notice of appeal or the appeal sought to be struck out. That failure to do so renders such an application fatally defective and liable to be struck out.
In the event that a party finds itself caught up by the lapse of time as was in this case, the proper thing to do is to file an application for extension of time under Rule 4 of this Court's Rules.
From the foregoing, it is our view therefore that the application before us is merited and is allowed. The appeal is struck out with costs to the applicant.
Issues in the judgment
#Internal contradiction on the date of filing of the striking-out application: paragraph 2 describes it as dated 31st October 2022, paragraph 10 refers to 31st October 2023, and paragraph 14 refers to 31st October 2022.
Contradiction on the date the respondent's notice of appeal was filed: the record elsewhere states it was filed on 9th November 2021, while paragraph 10 records the respondent as saying it was filed on 5th November 2021.
Contradiction on when the record of appeal was served: the applicants maintained they were not served with the notice of appeal and that the record of appeal was served on 24th October 2022, which the Court used to found its timeliness finding, without resolving the conflicting claim of immediate service in November 2021.
The respondent is inconsistently referred to as both 'respondent' and 'the appellant/respondent' within the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kobiro & 2 others v Orina (Civil Appeal (Application) E203 of 2022) [2024] KECA 705 (KLR)", 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.