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Court of AppealDismissedNot stated in judgment· [2025] KECA 270 (KLR)

Kenyatta National Hospital v Peter Mule Muthungu

Court of Appeal of Kenya
21 February 2025
DMD. K. MusingaMNMumbi NgugiGOG. V. Odunga
902 words in judgment
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The bottom line

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The Court of Appeal dismissed a late attempt to strike out an irregularly filed appeal because the application itself missed rule 84's mandatory 30-day deadline.

What this practically means

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Executive summary

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This was a notice of motion dated 14th March 2022 by which the applicant sought to strike out the respondent's record of appeal dated 4th October 2021, filed about eight months after the impugned judgment of 28th February 2020 and without leave. The respondent conceded the delay, attributing it to the Covid-19 pandemic, and relied on the fact that the decretal amount had been deposited in court so no prejudice would arise. The Court, composed of Musinga, Ngugi and Odunga JJA in a single judgment, found no dispute that both the notice of appeal and record of appeal were filed out of time and without leave. It nevertheless held that the applicant had equally violated the mandatory provisions of rule 84 of the Court of Appeal Rules, which requires an application to strike out a notice or record of appeal to be brought within 30 days of service. The application was filed well outside that window, roughly four months after service. The Court held the rule was couched in mandatory terms and left it no discretion to vary the time limit, placing blame for the delay squarely on the applicant. The motion was accordingly dismissed as incompetent, with each party bearing its own costs. The underlying appeal was left undisturbed to proceed to hearing.

Key legal issues

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01

Effect of failure to file a striking-out application within the 30 days prescribed by rule 84

Holding

An application to strike out a record of appeal brought more than 30 days after service is incompetent and must be dismissed, notwithstanding that the record itself was filed out of time and without leave.

Reasoning

The Court accepted that both the notice of appeal and the record of appeal were filed out of time and without leave. However, rule 84 requires an application to strike out to be brought within 30 days of service of the notice or record. The applicant filed the motion some four months after service, outside the prescribed window. The rule's time limit is mandatory and the Court has no discretion to vary it, so the incompetence of the applicant's own application defeats the motion even though the respondent's appeal was itself irregularly filed.

p. 2

Legal principles established

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  • Rule 84 prescribes a mandatory 30-day period for bringing an application to strike out a notice of appeal or record of appeal from the date of service, outside which the application is incompetent and the Court has no discretion to extend it.

Court orders

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  1. 1.The application to strike out the record of appeal is dismissed as incompetent
  2. 2.Each party shall bear its own costs of the application
Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal under its Rules (rule 84), on a striking-out application

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, "Kenyatta National Hospital v Peter Mule Muthungu", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/270/eng@2025-02-21

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