Kutima Investment Limited v Muthoni Kihara & Muthoni Kihara Mining Company Limited & 5 others

Rule 84 (now rule 86) prescribes that an application to strike out a notice of appeal shall not be brought after thirty days from service of the notice. This Court's jurisprudence, including African Service Maintenance v Comarco and earlier decisions, establishes that these timelines are mandatory and substantive, going to the jurisdiction of the Court. No leave to extend time was sought or obtained, so the Court could not sustain the application on that ground alone.

The delay point was not raised in the replying affidavit but introduced in written submissions. The Court acknowledged the general rule that parties are bound by pleadings, but held that compliance with rule 84 turns on undisputed dates discernible from the record itself, does not depend on contested facts, and goes to jurisdiction, so it could properly be considered despite being raised late.

The 1st respondent lodged and served the notice of appeal within the prescribed times and requested typed proceedings by letter copied to the applicant. Under the proviso to rule 82 (now rule 84(1)), such a request within 30 days of the decision gives succor to an appellant, so the delay attributable to the unavailability of typed proceedings could not be characterised as a failure to take an essential step.

Relying on John Mutai Mwangi v Mwenje Ngure and Kericho Technical Institute v Finmax, the Court affirmed that rule 83 exists to clean up notices of appeal lodged without genuine intention to prosecute appeals, preventing litigants who park the bus at the appeal gate from perpetually enjoying interim relief. The prolonged inaction here would ordinarily have justified intervention, but the incompetency of the application precluded it.