Kenya Defence Forces & another v Sande (Civil Appeal (Application) 10 of 2020) [2024] KECA 1675 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a record of appeal because the notice of appeal was served 82 days late, well beyond the seven days allowed.
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 was validly filed within the time prescribed by rule 75(2) notwithstanding the erroneous date of judgment stated in it
- 2.Whether the notice of appeal was served within the seven days prescribed by rule 77(1) and whether the unexplained delay in service invalidated the notice
- 3.Whether the explanations of mistake by a clerk and registry mix-up excused the failure to serve in time
- 4.Whether the record of appeal premised on an invalidly served notice of appeal ought to be struck out
Key legal issues
#Validity of a notice of appeal where service was effected out of time
The notice of appeal was timely filed but invalid for want of service within the seven days prescribed by rule 77(1); the delay of over two months was inexcusable and the record of appeal built on it must be struck out.
The notice was filed on 7th December 2018 and should have been served by 14th December 2018, but was served on 22nd February 2019. The explanations - a clerk's mistake, a registry mix-up, Christmas vacation and annual leave - were unsupported by an affidavit from the unnamed clerk and were therefore hollow. The respondents should have sought enlargement of time under rule 4 but did not. Following the Monirei decision on the mandatory nature of rule 77(1), an essential step was not taken in time.
Effect of the erroneous date of the impugned judgment in the notice of appeal
The typographical error citing the judgment date as 30th December 2018 instead of 30th November 2018 was cured by the subsequent amendment of the notice of appeal allowed by Musinga, (P), on 17th May 2024, and did not invalidate the notice.
The notice was filed on 7th December 2018, within fourteen days of the actual judgment date of 30th November 2018, so it satisfied rule 75(2). The wrong date in the notice was an issue overtaken by events because the respondents had already been permitted to amend the notice to reflect the correct date.
Legal principles established
#- A notice of appeal must be served within seven days of lodging as required by rule 77(1); failure to serve within the stipulated time without a successful application for enlargement of time renders the notice invalid and a record of appeal premised on it will be struck out.
Court orders
#- 1.The record of appeal dated 31st December 2019 and lodged on 14th January 2020 is struck out with costs to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Cause No. 1529 of 2015
- Jurisdiction invoked
- Rules 77(1), 82(1) and (2), 83 and 84 of the Court of Appeal Rules, 2010 (motion to strike out record of appeal)
Relief refused
#Respondents' plea to have the application dismissed so the appeal could be heard on its merit
No valid notice of appeal existed for want of timely service, so the record of appeal founded on it had to be struck out
Costs
The record of appeal is struck out with costs 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.
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.
In the absence of such afidavit, the explanations by the respondents are hollow and cannot warrant the exercise of this Court’s discretion in their favour.
In upshot, this application is merited. The record of appeal dated 31st December 2019 and lodged in this Court on 14th January 2020 is hereby struck out with costs to the applicant.
Issues in the judgment
#The judgment states that the respondents applied for the decree on 7th January 2022, whereas the applicant's contention in the preceding paragraph describes the application for decree as made on 7th January 2020; the dates conflict within the judgment.
The respondent's replying affidavit and submissions state full compliance with rule 82, but the Court found the notice of appeal was served out of time, a position the respondents did not dispute.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Defence Forces & another v Sande (Civil Appeal (Application) 10 of 2020) [2024] KECA 1675 (KLR)", Case Analysis (2024). Notice of Motion dated 26th February 2020 (arising from Employment and Labour Relations Court Cause No. 1529 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1675/eng@2024-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.