Dima & another v Sarah (Civil Appeal (Application) 113 of 2020) [2024] KECA 1224 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the notice of appeal was served months late, confirming that skipping service deadlines can kill an appeal.
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 notice of appeal should be struck out for failure to serve it on the applicant within the timelines prescribed by rule 79 of the Court of Appeal Rules
- 2.Whether the record of appeal should be struck out for late service without leave under rule 92
- 3.Whether the overriding objective and Article 159(2)(d) of the Constitution could excuse the failure to serve the notice of appeal and record of appeal in time
Key legal issues
#Effect of failure to serve a notice of appeal within the prescribed time
Failure to serve the notice of appeal within the timelines renders the appeal incompetent and the notice liable to be struck out under rule 86.
Rule 79(1) requires service of the notice of appeal on all persons directly affected before or within seven days of lodging. The purpose of service is to alert the party that the case has escalated, enabling preparation. Non-service gives the party a false belief that the matter has ended and occasions prejudice; the rule is couched in mandatory terms and its breach is an essential step not taken within the prescribed time.
Whether the overriding objective and Article 159(2)(d) excuse procedural non-compliance
No; the overriding objective and Article 159(2)(d) cannot be invoked to excuse an omission that goes to the root of the Rules, particularly where no application for enlargement of time or leave was made.
The Court held that sections 3A and 3B of the Appellate Jurisdiction Act were not meant to allow appeals filed out of time or served out of time without leave, as that would set a serious precedent causing confusion. The overriding principle applies only in well-deserving cases, each on its own circumstances, and Article 159(2)(d) is not a panacea for all procedural shortfalls. The respondents had also trivialized the Rules by claiming annexing the notice to a stay application amounted to service.
Probative value of submissions as against affidavit evidence
Counsel's submissions denying closure of the advocate's office could not displace the uncontroverted affidavit evidence of the process server.
Relying on Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, the Court held submissions are parties' 'marketing language' and do not constitute evidence. Mr. Omwenga should have filed an affidavit by his secretary to respond to the process server's averments; in their absence, the averments of attempted service on 30th January and 23rd March 2020 stood uncontroverted.
Legal principles established
#- A proper appeal is predicated upon filing and service of a notice of appeal within the prescribed timelines; failure to which there will be no valid appeal filed.
- Service of a notice of appeal as an annexure to another application does not constitute service of the notice of appeal under the Rules.
- Submissions cannot take the place of evidence; averments not rebutted by affidavit evidence stand uncontroverted.
- A party who has failed to comply with timelines for service must seek enlargement of time or leave under rule 4 rather than invoke the overriding objective.
Court orders
#- 1.The notice of appeal dated January 29, 2020 and lodged on January 30, 2020 is struck out
- 2.The record of appeal filed on March 12, 2020, and served on July 23, 2023 is struck out
- 3.The respondents will pay the costs of this application to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Rules 79, 86 and 92 of the Court of Appeal Rules, 2010 (now rules 79, 86 and 92 of the Court of Appeal Rules, 2022)
Relief refused
#Respondents' plea to sustain the appeal under the overriding objective, sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) of the Constitution
The omission went to the root of the Rules; service of the notice was five months late and the record four months late, and no leave or enlargement of time was sought
Costs
The respondents will pay the costs of this application 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.
The notice of appeal dated January 29, 2020 and lodged on January 30, 2020 are hereby struck out;
The record of appeal filed on March 12, 2020, and served on the July 23, 2023 be and is hereby struck out.
A proper appeal is predicated upon filing and service of a notice of appeal within the prescribed timelines; failure to which there will be no valid appeal filed.
Failure to serve a party with a Notice of Appeal within the time prescribed by law gives a party false belief that the matter has been concluded, only to be ambushed later with the record of appeal in which the said notice is tucked away somewhere in the record.
Submissions, we reiterate, do not constitute evidence at all.
The overriding principle will no doubt serve us well but it is important to point out that it is not going to be the panacea for all ills and in every situation.
Service of the notice of appeal as an annexure in the application for stay of execution was not acceptable service of the same.
Issues in the judgment
#The disposition states the record of appeal was 'served on the July 23, 2023' whereas the record elsewhere shows service occurred on 23rd July 2020; the date in the order appears to be a typographical error.
The opening paragraph describes the applicant as seeking striking out of 'the notice of appeal and record of appeal dated 30th January 2020 and 11th March 2020' while the final orders refer to a notice of appeal dated January 29, 2020 and lodged January 30, 2020, and a record of appeal dated 11th March 2020 but filed on March 12, 2020 - the date references are inconsistent within the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dima & another v Sarah (Civil Appeal (Application) 113 of 2020) [2024] KECA 1224 (KLR)", Case Analysis (2024). Notice of Motion dated 20th August 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1224/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.