County Government of Laikipia v Ngugi & another (Civil Appeal (Application) 62 of 2019) [2025] KECA 997 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal filed over a year late, ruling that constitutional fairness values cannot fix missed appeal deadlines.
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 appeal was competently instituted within the 60-day period prescribed by Rule 84 of the Court of Appeal Rules, given that the letter bespeaking proceedings was not served on the applicant
- 2.Whether the overriding objective (sections 3A and 3B of the Appellate Jurisdiction Act), the inherent powers of the Court under Rule 1, and Article 159(2)(d) of the Constitution can cure an appeal filed out of time without leave
- 3.Whether the alleged failure to serve the 1st third party and defects in the memorandum of appeal render the appeal incompetent
Key legal issues
#Effect of non-service of the letter bespeaking proceedings on the time for instituting an appeal
Because the letter bespeaking proceedings was admittedly not served, the respondent could not rely on the proviso to Rule 86(1) to exclude time; the appeal ought to have been filed within 60 days of the notice of appeal or under a grant of extension, which was never sought.
Rule 84(2) expressly denies an appellant the benefit of the proviso to subrule (1) unless the written application for proceedings was served on the respondent. Non-service being admitted, the 60-day period ran from the notice of appeal filed on 21st December 2017; the appeal filed on 4th April 2019, over a year later and without leave, was out of time and incompetent.
Whether the overriding objective can save an appeal filed out of time without leave
No. The competency of an appeal filed out of time without leave is a question of jurisdiction and cannot be cured by the overriding objective, the inherent powers of the Court, or Article 159(2)(d) of the Constitution.
Relying on Felister Wakonyo Wamahiu v Joseph Wachira Mwangi, the Court held that jurisdiction to entertain appeals is confined to timely appeals or those filed out of time with leave; holding otherwise would upset the established principles for institution of appeals. The respondent also offered no explanation for the delay, merely invoking Article 159(2)(d), sections 3A and 3B of the Appellate Jurisdiction Act and Rule 1.
Alleged defects in the memorandum of appeal and non-joinder/non-service of the 1st third party
Not determinative, as the appeal was struck out principally for want of competence arising from late filing without leave.
The applicant alleged that the memorandum of appeal was undated, unsigned or not lodged, and that the 1st third party was not served as required by Rule 94. The respondent annexed a duly dated and lodged memorandum and contended it was not obliged to serve parties who had not filed a notice of address. The Court did not adjudicate these grounds, striking the appeal out on the jurisdictional ground.
Legal principles established
#- An appeal must be instituted within 60 days of the notice of appeal; where the letter bespeaking proceedings is not served on the respondent, the proviso excluding time for preparation of proceedings is unavailable, and an appeal filed out of time without leave is incompetent and must be struck out.
- The overriding objective, the inherent powers of the Court and Article 159(2)(d) of the Constitution cannot cure the jurisdictional defect of an appeal filed out of time without leave.
- The Court has jurisdiction only over appeals filed within the requisite time or out of time with leave.
Court orders
#- 1.The appeal is struck out as not competently before the Court
- 2.The applicant and the 2nd respondent shall have costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Court of Appeal Rules (2010), Rules 42(1), 43(1), 82(1) and 84; sections 3A and 3B of the Appellate Jurisdiction Act; Article 159(2)(d) of the Constitution (invoked by the respondent)
Relief refused
#Respondent's plea to sustain the appeal under the overriding objective, Article 159(2)(d) and the Court's inherent powers despite non-service of the letter bespeaking proceedings
The competency of an appeal filed out of time without leave goes to jurisdiction and cannot be cured by the overriding objective; no explanation for the delay was offered
Costs
The applicant and the 2nd respondent shall have costs of this application.
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.
In the circumstances, we are of the considered view that the appeal herein is not competently before this Court and is hereby struck out.
The applicant and the 2nd respondent shall have costs of this application.
We are of the view that the competency of the appeal goes to the jurisdiction of this Court and cannot be cured by the overriding objective of this Court.
It’s trite that this Court has jurisdiction to entertain appeals filed within the requisite time and/or appeals filed out of time with leave of the Court.
it is admitted that the letter be- speaking the proceedings was not served upon the applicant, which means that the respondent cannot benefit from Proviso 1 under Rule 86 of the Rules.
Issues in the judgment
#The judgment introduces Rule 86 but then reproduces the text of Rule 84 under the heading 'Rule 86 of this Court's Rules provides', creating ambiguity as to which rule is quoted
The costs order refers to 'the 2nd respondent' although only one respondent is described in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government of Laikipia v Ngugi & another (Civil Appeal (Application) 62 of 2019) [2025] KECA 997 (KLR)", Case Analysis (2025). Notice of Motion dated 26th April 2019 in the pending appeal (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/997/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.