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Court of AppealStruck OutCivil Application (per notice of motion dated 1st December 2020)

Maitha v Mutie (Civil Appeal (Application) 66 of 2020) [2024] KECA 1634 (KLR)

Court of Appeal of Kenya
8 November 2024
1,692 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Court of Appeal struck out a late attempt to kill an appeal, confirming that striking-out applications must be filed within 30 days of service.

What this practically means

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Executive summary

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The applicant moved the Court of Appeal under rule 84 of its Rules seeking to strike out the respondent's notice of appeal dated 10th February 2020 and record of appeal dated 20th February 2020, arising from a Machakos Environment and Land Court appeal. The respondent had obtained extension of time from Warsame, JA. by a ruling dated 6th February 2020 on conditions: filing and serving the notice of appeal within 14 days and paying the applicant costs of Kshs. 20,000/- within 7 days. The respondent complied with the first condition but not the second, offering an excuse that a cheque was inadvertently omitted from a covering letter. The applicant argued the respondent could not obey the orders partially. The Court agreed that full compliance was required and that the failure to pay the costs was disobedience of a court order sufficient to challenge the appeal documents. However, the Court turned to the competence of the application itself. Under the proviso to rule 84, an application to strike out a notice or record of appeal must be filed within 30 days of service of the notice or record. Service of the record of appeal occurred on 21st February 2020, uncontested, yet the application was dated 1st December 2020, well outside the 30-day window, and no leave for extension of time under Rule 4 had been sought. Following Esther Anyango Ochieng v Transmara Sugar Company and the authorities it adopted, the Court held the application incompetent and incurably defective. It struck out the notice of motion dated 1st December 2020 and made no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent's failure to pay the costs of Kshs. 20,000/- ordered by Warsame, JA. rendered the notice of appeal and record of appeal improperly on record and liable to be struck out
  2. 2.Whether the application to strike out was filed within the 30-day period prescribed by the proviso to rule 84 of the Court of Appeal Rules

Key legal issues

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01

Time limit for applications under rule 84 to strike out an appeal

Holding

The application must be brought within 30 days of service of the notice of appeal or record of appeal; otherwise it is fatally defective unless leave for extension of time is sought and obtained.

Reasoning

The proviso to rule 84 mandatorily requires an application to strike out to be filed within 30 days of service of the notice of appeal or record of appeal. The record of appeal was served on 21st February 2020, so the deadline expired in late March 2020. The application was dated 1st December 2020 and no extension of time was sought under Rule 4. The court adopted Kiage, JA's reasoning in Esther Anyango Ochieng and the authorities cited therein, holding the application incurably defective.

p. 3
02

Full compliance with orders granting extension of time

Holding

A party granted extension of time on conditions must comply with all conditions; failure to pay the ordered costs was disobedience of the court order and a sufficient ground to challenge the appeal, but this did not save the incompetent application.

Reasoning

The court agreed with the applicant that the respondent was required to fully comply with Warsame, JA's order, including payment of Kshs. 20,000/- within 7 days, and that partial obedience does not suffice. However, this observation was made without prejudice to the dispositive point: the striking-out application itself violated the proviso to rule 84 and had to be struck out.

p. 2

Legal principles established

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  • An application under rule 84 to strike out a notice of appeal or an appeal must be filed within 30 days of service of the notice of appeal or record of appeal, and is incompetent if filed later without leave.
  • Failure to comply fully with conditions attached to an order extending time to file an appeal, such as payment of costs, constitutes disobedience of a court order and is a sufficient ground to challenge the notice and record of appeal.

Court orders

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  1. 1.The notice of motion dated 1st December 2020 is struck out
  2. 2.No orders as to costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
Jurisdiction invoked
Rule 84 of the Court of Appeal Rules (2010)

Relief refused

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Striking out of the notice of appeal dated 10th February 2020 and the record of appeal dated 20th February 2020

The application itself was filed out of time under the proviso to rule 84 and no leave to file out of time was obtained, rendering it incompetent

p. 3

Costs

No orders as to costs of the application

Quotable passages

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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 or record of appeal must be filed not later than 30 days from the date of service of the notice or record of appeal.
p. 3Mandatory time limit under proviso to rule 84
In essence, therefore, this application is incompetent and incurably defective. It must invariably sufier the singular fate of being struck out.
p. 3Consequence of filing out of time
In the upshot, the notice of motion dated 1st December 2020 is hereby struck out. We make no orders as to costs of the application.
p. 3Final orders and costs

Issues in the judgment

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minor

Typographical rendering errors in the judgment text ('suficient' for 'sufficient', 'sufier' for 'suffer', 'afiected' for 'affected', 'indiligent')

minor

Paragraph 9 states the costs of Kshs. 20,000/- were to be paid 'to the respondent' although the applicant was the party to be paid

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Maitha v Mutie (Civil Appeal (Application) 66 of 2020) [2024] KECA 1634 (KLR)", Case Analysis (2024). Civil Application (per notice of motion dated 1st December 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1634/eng@2024-11-08

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