Maitha v Mutie (Civil Appeal (Application) 66 of 2020) [2024] KECA 1634 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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
#Time limit for applications under rule 84 to strike out an appeal
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.
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.
Full compliance with orders granting extension of time
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.
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 1st December 2020 is struck out
- 2.No orders as to costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Rule 84 of the Court of Appeal Rules (2010)
Relief refused
#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
Costs
No orders as to costs of the application
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 or record of appeal must be filed not later than 30 days from the date of service of the notice or record of appeal.
In essence, therefore, this application is incompetent and incurably defective. It must invariably sufier the singular fate of being struck out.
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.
Issues in the judgment
#Typographical rendering errors in the judgment text ('suficient' for 'sufficient', 'sufier' for 'suffer', 'afiected' for 'affected', 'indiligent')
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.