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Court of AppealDismissedNotice of Motion dated 15th August 2023 (Civil Application)

Masoud v Kenya Revenue Authority (Civil Appeal (Application) E048 of 2023) [2024] KECA 1733 (KLR)

Court of Appeal of Kenya
6 December 2024
1,665 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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Kenya's Court of Appeal refused to strike out KRA's appeal, confirming records filed within court-ordered timelines stand and supplementary records need no leave.

What this practically means

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Executive summary

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The applicant, Munir Abubakar Masoud, moved the Court of Appeal under rules 84 and 88 of the Court of Appeal Rules, 2020, seeking to strike out the Kenya Revenue Authority's appeal against a judgment of the Employment and Labour Relations Court of 22nd July 2022, which found violations of his constitutional rights and awarded him Kshs. 15,000,000. He argued that the Record of appeal, filed on 11th April 2023, was filed far outside the 60-day period in rule 84; that it omitted the trial judge's notes of proceedings contrary to rule 89(d); and that no leave was sought to file the Record or a Supplementary Record out of time. The respondent, KRA, countered that this Court's stay ruling of 24th February 2023 directed it to file the Record within 45 days, which it did on 4th April 2023 (39 days later), and that it filed a Supplementary Record on 17th April 2023 after obtaining certified typed proceedings, as rule 94(3) permits without leave. The Court, per Murgor, Nyamweya and Odunga JJA, held that a Record filed within a period fixed by the Court's own order could not be struck out as out of time, and that a supplementary record may be lodged at any time without leave. The application was dismissed with costs in the appeal.

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 Record of appeal, filed on 4th April 2023, was filed out of time under rule 84 so as to render the appeal incompetent
  2. 2.Whether the omission of the trial judge's notes of proceedings rendered the Record of appeal defective
  3. 3.Whether the Supplementary Record of appeal filed on 17th April 2023 required leave of the Court

Key legal issues

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01

Compliance with court-ordered timelines for filing the Record of appeal

Holding

A Record of appeal filed pursuant to a court order fixing a 45-day period, and filed within 39 days of that order, cannot be struck out as filed out of time under rule 84

Reasoning

The Court had, in its stay ruling of 24th February 2023, directed the respondent to file and serve the Record of appeal within 45 days. The respondent filed on 4th April 2023, being 39 days later. Rule 3 governs computation of time. Since the Record was filed within the period fixed by the Court, the application to strike it out was unwarranted and unnecessary.

p. 3
02

Whether leave is required to lodge a supplementary record of appeal

Holding

Rule 94(3) permits an appellant to lodge a supplementary record of appeal at any time without leave

Reasoning

Rule 94(3) is explicit in permitting an appellant to lodge a supplementary record of appeal at any time and serve it on respondents who have complied with rule 81. The respondent explained that typed proceedings were not ready when the main record was filed; it filed the supplementary record on 17th April 2023 after obtaining the certified typed proceedings. That course cannot be faulted.

p. 4

Legal principles established

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  • Parties are bound to comply with directions and timelines fixed by the Court, including timelines for filing a Record of appeal fixed in a stay ruling
  • Under rule 94(3) of the Court of Appeal Rules, 2020, an appellant may lodge a supplementary record of appeal at any time without leave of the Court

Court orders

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  1. 1.The applicant's Notice of Motion dated 15th August 2023 is dismissed
  2. 2.Costs awarded in the appeal

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court, Mombasa
Jurisdiction invoked
Rules 84, 88 and 94(3) of the Court of Appeal Rules, 2020 - interlocutory application within a pending appeal

Relief refused

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Striking out of the respondent's appeal and Record of appeal

The Record of appeal was filed within the 45-day period fixed by the Court's order of 24th February 2023, and the Supplementary Record required no leave under rule 94(3)

p. 4

Costs of the application

Application dismissed; costs ordered in the appeal against the applicant

p. 4

Costs

Costs in the appeal.

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.

In sum, the applicant's Notice of Motion dated 15th August 2023 is unmerited, and is accordingly dismissed. Costs in the appeal.
p. 4Final orders - dismissal of the striking-out application
This means that the respondent was entitled to lodge a supplementary record of appeal at any time and without leave of this Court.
p. 4Rule 94(3) - supplementary record without leave
we find that the applicant's application to strike out a Record that was filed pursuant to an order of this Court was unwarranted and unnecessary.
p. 3Compliance with court-fixed timelines precludes striking out

Issues in the judgment

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minor

The judgment inconsistently states the date of the stay ruling as both 24th February 2023 and 23rd February 2023

minor

Counsel for the applicant stated he would rely on written submissions, but the record does not disclose any written submissions filed

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, "Masoud v Kenya Revenue Authority (Civil Appeal (Application) E048 of 2023) [2024] KECA 1733 (KLR)", Case Analysis (2024). Notice of Motion dated 15th August 2023 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1733/eng@2024-12-06

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