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Court of AppealPartially AllowedNot stated in judgment

Getonto v Bichage (Civil Application E132 of 2023) [2024] KECA 1842 (KLR)

Court of Appeal
20 December 2024
1,778 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out a notice of appeal served six months late, confirming that strict service timelines apply regardless of arguments about substantial justice.

What this practically means

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Executive summary

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This is an interlocutory decision of the Court of Appeal at Kisumu (Okwengu, Omondi and Ngugi, JJAA) delivered on 20th December 2024, determining a Notice of Motion dated 25th October 2023 brought under Rules 79(1) and 86 of the Court of Appeal Rules, 2022, seeking to strike out a Notice of Appeal dated 2nd March 2023. The applicant had obtained a judgment in his favour in the Environment and Land Court on 9th March 2023. The respondent lodged the notice of appeal on 9th March 2023 but served it only on 28th September 2023, six months later, contrary to the seven-day service requirement in Rule 79(1). The respondent asserted timely service but produced no proof; the applicant annexed the notice showing receipt on 28th September 2023. The respondent instead blamed his failure to file the record of appeal on not being supplied with typed proceedings, and argued that striking out would be drastic and remove him from the seat of justice. Deciding the motion on written submissions, the Court framed two issues: whether there was service within Rule 79, and whether the notice should be struck out. Reaffirming settled authority that service of a notice of appeal is crucial and that Article 159 and the oxygen principles were never meant to destroy rules of procedure, the Court held the service was out of time with no plausible explanation and no attempt to regularize the default. The application was allowed; the notice of appeal was struck out with costs to the respondent. No decision below was disturbed; the effect is that the intended appeal against the ELC judgment cannot proceed.

Questions the Court framed

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

  1. 1.Whether there was service of the notice of appeal upon the applicant as required by Rule 79 of the Court of Appeal Rules, 2022
  2. 2.Whether the Notice of Appeal dated 2nd March, 2023 should be struck out

Key legal issues

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01

Timeliness of service of the notice of appeal under Rule 79(1)

Holding

The notice of appeal lodged on 9th March 2023 was served on 28th September 2023, six months later, well outside the mandatory seven-day period; the burden was on the respondent to prove timely service and he failed.

Reasoning

Rule 79(1) mandates service before or within seven days of lodging the notice of appeal. The respondent asserted in his replying affidavit that the applicant was served on time, but placed no proof of service before the Court; the applicant annexed a copy of the notice showing service and receipt on 28th September 2023. The Court therefore found the service out of time as common ground.

02

Whether the notice of appeal should be struck out under Rule 86 for failure to take an essential step within the prescribed time

Holding

Striking out was warranted: there was inordinate, unexplained delay of six months in service, and the respondent made no attempt to regularize the default.

Reasoning

Rule 86 permits a person affected by an appeal to apply to strike out a notice of appeal where an essential step has not been taken within the prescribed time, provided the application is brought within thirty days of service of the notice. The application was timely under Rule 86(b). The respondent offered no plausible explanation for the late service, pegging his submissions instead on reasons for not filing the record of appeal, and sought no regularizing orders. Article 159 and the oxygen rule do not excuse defiance of procedural timelines.

p. 4
03

Sanctity of procedural rules and timelines

Holding

Strict timelines in appellate rules serve the constitutional objective of timely, efficient and cost-effective justice, and courts must not provide succour to parties who disregard them.

Reasoning

Relying on prior decisions of this Court and the Supreme Court, the Court reaffirmed that service of a notice of appeal is crucial; rules and timelines make adjudication fair, just, certain and even-handed; Article 159 was never meant to destroy rules of procedure or create an anarchical free-for-all; and strict adherence to rules underpins the rule of law and certainty.

p. 3

Legal principles established

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  • An intended appellant must serve the notice of appeal on all persons directly affected before or within seven days after lodging it, and unexplained inordinate delay in service, unremedied by any application to regularize, will result in the notice of appeal being struck out under Rule 86.
  • Article 159 of the Constitution and the oxygen principles do not excuse non-compliance with rules and timelines of procedure.
  • Rules of practice and procedure must be adhered to strictly; hardship caused should be met by seeking amendment of the rule, not by neglecting it.

Court orders

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  1. 1.The Notice of Appeal dated 2nd March, 2023 is struck out
  2. 2.Costs of the application to be borne by the respondent

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
Environment and Land Court
Not stated in judgment
Jurisdiction invoked
Rules 79(1) and 86 of the Court of Appeal Rules, 2022 (interlocutory application within pending appeal)

Relief refused

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Respondent's plea to be left in the seat of justice / to cure the default by later filing the record of appeal

The respondent gave no plausible explanation for the six-month delay in service and made no attempt to regularize the default

p. 4

Costs

Allowed with costs to be borne by the respondent

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.

Accordingly, there is merit in the application herein and it is allowed with costs to be borne by the respondent.
p. 4Final orders - application allowed, costs to respondent
Service of a notice of appeal is crucial.
p. 3Importance of service of notice of appeal
I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an eficient, proportionate and cost-efiective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure
p. 3Article 159 does not override procedural rules
The rules of the court must be adhered to strictly and if hardship or inconvenience is thereby caused, it would be that easier to seek an amendment to the particular rule.
p. 4Strict adherence to rules of practice and procedure
It is common ground that the Notice of Appeal was served out of time, 6 months after it was filed. In his response, the respondent has not given a plausible explanation as to why the notice of appeal was served outside time
p. 4Unexplained inordinate delay in service

Issues in the judgment

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material

The judgment does not disclose the names of the applicant or respondent, the case number of the appeal, or the lower-court case number, limiting identification of the parties and appeal.

minor

The respondent claimed service was effected on time, but the Court found service occurred six months after lodging; the judgment does not resolve whether the letter bespeaking proceedings was filed on 2nd March 2023 as the respondent asserted (paragraph 4) or filed and paid for on that date per his submissions (paragraph 10), nor does it disclose its filing date.

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, "Getonto v Bichage (Civil Application E132 of 2023) [2024] KECA 1842 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1842/eng@2024-12-20

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