Murila v Langat & another (Civil Application 62 of 2020) [2024] KECA 1667 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a notice of appeal because late service of court documents wasn't properly explained or excused.
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 dated 22nd January 2020 was served on the applicant outside the 7-day period prescribed by rule 77(1) of the Court of Appeal Rules (2010)
- 2.Whether the delay in service was excusable
- 3.Whether the notice of appeal ought to be struck out on account of service out of time without leave
Key legal issues
#Mandatory nature of the 7-day service period under rule 77(1)
Service of a notice of appeal outside the 7-day period prescribed by rule 77(1) renders the notice incompetent on its face unless leave is obtained
The Court reproduced rule 77(1) and relied on its own decision in Mistry Premji Ganji (Investments) Limited v Kenya National Highways Authority, which held the rule mandatory and cited Stephen Kinoro Kamau v Wanjiku Kinuthia. The notice was lodged on 23rd January 2020, so the 7 days lapsed on 30th January 2020; service was effected on 4th February 2020, outside the period.
Whether the clerk's error excused the delay
The delay was not excusable because the respondents did not identify the clerk or secure an affidavit from him, and did not explain any inability to do so
The respondents bore the onus of satisfactorily explaining the delay. Mere attribution to an unnamed clerk, without the clerk's affidavit and without any deposition of difficulty in obtaining one, fell short. Upon discovering the error, the proper course was an application under rule 4 for extension of time, which the respondents never made.
Legal principles established
#- Rule 77(1) of the Court of Appeal Rules is couched in mandatory terms and a notice of appeal must be served on all persons directly affected by the appeal before or within seven days after lodging it
- A party relying on an error of a clerk to explain delay in service must give the clerk's details and swear an affidavit from that clerk; otherwise the delay is not excusable
- A party that realises it has failed to serve a notice of appeal in time should invoke rule 4 of the Court of Appeal Rules and seek extension of time to serve, rather than proceed without leave
Court orders
#- 1.The notice of motion dated 3rd March 2020 is allowed
- 2.The notice of appeal dated 22nd January 2020 is struck out
- 3.Costs of the application to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court
- Employment and Labour Relations Court Cause No 1153 of 2014
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rules 77(1), 83 and 84 of the Court of Appeal Rules (2010)
Relief refused
#Respondents' request to dismiss the application and allow the intended appeal to proceed to hearing on merit
The delay in service was not satisfactorily explained; the respondents attributed it to an unnamed clerk and did not swear an affidavit from that clerk or seek extension of time under rule 4
Costs
Costs of the 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.
An intended appellant shall, before or within seven days after lodging notice of appeal, serve copies thereof on all persons directly afiected by the appeal.
Rule 77 (1) is couched in mandatory terms.
On the face of it, the notice of appeal is incompetent by dint of service outside the prescribed period.
Consequently, this application is for allowing, which we hereby do, with the result that the notice of appeal dated 22nd January 2020 is hereby struck out with costs to the applicant.
Issues in the judgment
#The full names of the parties and the appeal number are not stated in the judgment; the applicant is identified only through her advocate, and the respondents only descriptively (the 2nd respondent's company name is not given)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murila v Langat & another (Civil Application 62 of 2020) [2024] KECA 1667 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1667/eng@2024-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.