[2024] KECA 1040 (KLR)
The Court found that the respondent filed the notice of appeal on 29th February 2024, which was well outside the fourteen-day period required by Rule 77(2) of the Court of Appeal Rules 2022, following the High Court judgment delivered on 10th August 2023. The respondent did not seek or obtain leave of the court to...
Source-derived case information.
- Citation
- [2024] KECA 1040 (KLR)
- Parties
- Applicant: Rentworks East Africa Limited; Respondent: Jeniffer Kinya Simon
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Application E027 of 2024
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- application allowed; notice of appeal struck out with costs to applicant
- Judges
- W Karanja, LK Kimaru, AO Muchelule
- Legal Topics
- Notice of Appeal, Time Limits, Striking Out Pleadings, Court of Appeal Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rentworks East Africa Limited
Applicant
Jeniffer Kinya Simon
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal was filed outside the prescribed fourteen-day period under the Court of Appeal Rules.
- 2 Whether leave of the court was required and obtained for filing the notice of appeal out of time.
- 3 Whether the notice of appeal should be struck out for non-compliance with procedural rules.
Ratio Decidendi
The Court found that the respondent filed the notice of appeal on 29th February 2024, which was well outside the fourteen-day period required by Rule 77(2) of the Court of Appeal Rules 2022, following the High Court judgment delivered on 10th August 2023. The respondent did not seek or obtain leave of the court to file the notice out of time as required under Rule 4. The Court held that, pursuant to Rule 86(b), it had jurisdiction to strike out pleadings filed outside the stipulated period without leave. As the notice of appeal was filed out of time and without leave, it was incompetent and amenable to striking out. The application was unopposed, and the Court accordingly struck out the...
Court Disposition
application allowed; notice of appeal struck out with costs to applicant
Orders
- The notice of appeal dated 28th February 2024 is struck out.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
20 paragraphs
Rentworks East Africa Limited v Simon (Civil Application E027 of 2024) [2024] KECA 1040 (KLR) (26 July 2024) (Ruling)
Neutral citation: [2024] KECA 1040 (KLR)
Republic of Kenya
In the Court of Appeal at Nyeri
Civil Application E027 of 2024
W Karanja, LK Kimaru & AO Muchelule, JJA
July 26, 2024
Between
Rentworks East Africa Limited
Applicant
and
Jeniffer Kinya Simon
Respondent
(Being an application to strike out the notice of appeal dated 28th February, 2024)
Ruling
1. The applicant, Rentworks East Africa Limited filed an application seeking the striking out of the notice of appeal dated 28th February 2024 in Chuka High Court, Civil Appeal No. E010 of 2020. It is the applicant’s contention that following the delivery of the judgment by the High Court on 10th August 2023, the respondent filed the notice of appeal seeking to challenge the decision on 29th February 2024. According to the applicant, the said notice of appeal was filed beyond the period of fourteen (14) days provided by this Court’s Rules, and no leave of the Court was sought or granted. Therefore, that the notice was incompetent and ought to be struck out. The application is supported by the annexed affidavit of Jennipher Catherine Ombonya, the advocate for the applicant.
2. The application is unopposed. The respondent was duly served.She neither filed a replying affidavit, nor, on the hearing date, file written submissions in opposition to the application.
3. Rule 77 (2) of the Court of Appeal Rules 2022 requires any party intending to lodge an appeal against the decision of a superior court to do so within fourteen (14) days of the date of delivery of the decision that is sought to be appealed. In the present application, the applicant states that the judgment that is the subject of the notice of appeal was rendered on 10th August 2023. The notice of appeal was therefore required to be filed within fourteen (14) days of the said decision. The respondent filed the notice of appeal on 29th February 2024. This notice was clearly filed beyond the fourteen (14) days stipulated by the Rules. The respondent should have sought the leave of this Court under Rule 4 of this Court’s Rules before she filed the said notice of appeal out of time.
4. Rule 86 (b) of the Court of Appeal Rules 2022, grants this Court jurisdiction to strike out any pleadings that have been filed outside the period stipulated by the Rules of this Court without the leave of the court. The notice of appeal filed herein is amenable to striking out. It is hereby struck out with costs to the applicant.
DATED AND DELIVERED AT NYERI THIS 26TH DAY OF JULY, 2024. W. KARANJA……………………………JUDGE OF APPEALL. KIMARU………….……………………..JUDGE OF APPEALA. O. MUCHELULE……………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR