Mathenge v Attorney General & 2 others (Civil Application 144 of 2020) [2024] KECA 1405 (KLR)
The bottom line
#The Court of Appeal ruled that delayed appeals cannot be struck out under rule 86, and respondents aren't to blame when the Registrar hasn't fixed a hearing date.
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 respondents' appeal should be struck out for want of prosecution
- 2.Whether rule 86 of the Court of Appeal Rules, 2022 can be invoked to strike out an appeal for want of prosecution
- 3.Whether the blame for the delay in setting down the appeal for hearing lies with the respondents
Key legal issues
#Scope of rule 86 of the Court of Appeal Rules, 2022
Rule 86 is confined to two situations: where no appeal lies as a matter of law, or where an essential step in the proceedings was not taken within the prescribed time. It cannot ground a strike-out for want of prosecution.
The court read rule 86 strictly. The proviso limiting applications to thirty days after service of the notice or record of appeal further confirms the rule's narrow scope. Where the delay in listing or prosecution is attributable to the appellant, the proper route is sections 3A and 3B of the Appellate Jurisdiction Act on the overriding objective, which include expeditious determination of proceedings.
Responsibility for setting an appeal down for hearing
Under rule 104(1) it is the Registrar, not the respondent, who is obliged to fix and notify hearing dates; the delay here was therefore not attributable to the respondents.
The court found that the applicants' reliance on Order 17 rule 2(1) of the Civil Procedure Rules and Ivita v Kyumbu was misplaced, as neither applies before the Court of Appeal. Given the heavy caseload of the Court relative to judicial numbers, appeals often remain unheard for years, and such delay cannot be blamed on a compliant respondent.
Legal principles established
#- Rule 86 of the Court of Appeal Rules, 2022 cannot be used to strike out an appeal for want of prosecution; it applies only where no appeal lies or where an essential step was not taken within the prescribed time.
- A respondent bears no blame for delay in the hearing of an appeal where the respondent has done all required under the Court's Rules and Practice Directions, since fixing hearing dates is the Registrar's duty.
Court orders
#- 1.The Notice of Motion dated February 21, 2024 is dismissed
- 2.Costs of the application are awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Labour Relations Court (ELRC), Milimani
- Employment & Labour Relations Petition No. 43 of 2015
- Jurisdiction invoked
- Rule 86 and sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9; Court of Appeal Rules, 2022
Relief refused
#Striking out of the appeal filed on March 23, 2020 for want of prosecution
Rule 86 cannot be invoked to strike out an appeal for want of prosecution, and the duty to fix a hearing date lies with the Registrar under rule 104(1)
Judgment being entered for the applicants on the appeal
The application was dismissed in its entirety
Costs
Costs of the application are awarded to the respondents.
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.
This rule cannot be invoked to strike out an appeal for want of prosecution, even in instances where the delay in prosecuting the appeal is attributable to the appellant.
Where the delay in listing or prosecution of an appeal is attributable to the appellant, the Court can only be moved to strike out the appeal under sections 3A and 3B of the Appellate Jurisdiction Act
That duty lies squarely on the Registrar to issue a hearing date for the appeal.
In light of the foregoing, the Notice of Motion dated February 21, 2024 has no merit and is hereby dismissed. Costs of the application are awarded to the respondents.
Issues in the judgment
#The judgment text begins with empty numbered paragraphs (1 and 2 contain no text), suggesting the official copy may omit an opening passage identifying the appeal parties and history
The roles of the parties appear inverted relative to the appeal: the applicants are the original petitioners, yet the judgment refers to 'the applicants, Michael Murji Mathenge & 28 Others' while stating 'the respondents appealed to this Court'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mathenge v Attorney General & 2 others (Civil Application 144 of 2020) [2024] KECA 1405 (KLR)", Case Analysis (2024). Notice of Motion dated February 21, 2024 in the pending appeal (appeal filed March 23, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1405/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.