[2005] KECA 276 (KLR)
The Court held that Rule 80 of the Court of Appeal Rules, as amended, is clear and mandatory in setting a 30-day time limit for applications to strike out a notice or record of appeal after service. The applicants' motion, filed nearly two years after service, was therefore time-barred and could not be entertained....
Source-derived case information.
- Citation
- [2005] KECA 276 (KLR)
- Parties
- Appellant: Veronicah Rwamba Mbogoh; Respondent: Margaret Rachel Muthoni; Respondent: Arthur Munene Mbogoh
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 311 of 2002
- Procedural Posture
- Civil Appeal / Application to Strike Out Record of Appeal
- Outcome
- Application struck out with costs to the respondents.
- Judges
- J Wakiaga
- Legal Topics
- Appeal Striking Out, Time Limits for Applications, Supplementary Record of Appeal, Probate and Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Veronicah Rwamba Mbogoh
Appellant
Margaret Rachel Muthoni
Respondent
Arthur Munene Mbogoh
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Record of Appeal
Legal Issues
- 1 Whether an application to strike out a record of appeal can be brought outside the 30-day period prescribed by Rule 80 of the Court of Appeal Rules.
- 2 Whether leave is required to file a supplementary record of appeal under Rule 89.
Ratio Decidendi
The Court held that Rule 80 of the Court of Appeal Rules, as amended, is clear and mandatory in setting a 30-day time limit for applications to strike out a notice or record of appeal after service. The applicants' motion, filed nearly two years after service, was therefore time-barred and could not be entertained. The Court further held that the request for leave to file a supplementary record was unnecessary, as Rule 89 grants respondents an automatic right to do so without leave. Accordingly, the application was struck out in its entirety, with costs awarded to the respondents.
Court Disposition
Application struck out with costs to the respondents.
Orders
- The Notice of Motion dated 15th October 2004 is struck out.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI
(CORAM: TUNOI, WAKI, JJ.A & DEVERELL, AG. J.A)
CIVIL APPEAL (APPLICATION) NO. 311 OF 2002
VERONICAH RWAMBA MBOGOH …………………………….. APPELLANT
AND
MARGARET RACHEL MUTHONI
ARTHUR MUNENE MBOGOH .……..............……………….RESPONDENTS
An application to strike out the record of appeal from the ruling and order of the High Court of Kenya at Nairobi (Visram, J.) dated 14. 11. 2001 in H.C.S.C NO. 989 OF 1999)
RULING OF THE COURT
The main appeal in this succession matter was set down for hearing on 14. 10. 04 but was adjourned for good reasons to a date to be fixed at the Registry on priority basis in the month of November, 2004. Instead of setting down the appeal for hearing in accordance with that order, the Respondents, Margaret Rachel Muthoni and Arthur Munene Mbogoh (hereinafter the “applicants”) took out a Notice of Motion the following day (15. 10. 04) seeking two substantive orders:
a) That the record of Appeal be struck off for being incompetent.
b) That if the record is found to be competent or salvageable theapplicant be given leave or be allowed time to file a supplementary record appeal (sic).
The reason given for incompetence was that some primary documents were missing.
In response to that application the appellant, Veronicah Rwaba Mbogoh (hereinafter the “Respondent”) gave notice that she would raise a preliminary objection to that application on a point of law. And so it was that on the scheduled hearing of the application, learned counsel for the Respondent, Mr. Ngatia took up that objection. It is this:
The main appeal was filed on 25. 11. 02 and was served on the same day. Since 30. 8.02 when L/N 152/02 was published amending Rule 80 of this Court’s rules, no person affected by an appeal may seek to strike out the appeal after expiry of 30 days from the date of service of the record of Appeal. The Rule provides:
“80 A person affected by an appeal may, apply to the Court to strike out the notice of appeal or the appeal, as the case may be, on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time:
Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty (30) days from the date of service of the record of appeal on the respondent”.
So that, the applicants had upto 24. 12. 02 to make any application for striking out, but did not do so. The rule is mandatory and therefore the application filed on 15. 10. 04 came two years too late. It was indeed an afterthought as it was filed in disregard of an order that the main appeal be set down for hearing on priority basis. Mr. Ngatia further submitted that the prayer made for leave to file a supplementary record is futile. That is because under Rule 89 there is an automatic right for a respondent in an appeal to prepare and serve a supplementary record of appeal if he is of the opinion that the record is defective or insufficient for purposes of his case. On both counts therefore the application should be rejected.
In response, learned counsel for the applicants Mr. Mbigi contended that Rule 80 concerns itself with the time-frame of filing a competent appeal and a competent appeal can only be filed under Rule 85. The Rule does not cover incompetent appeals which may be struck out at any time. The objection raised was therefore misguided
With respect, we think Rule 80 presents no peculiar difficulty in construction. The time frame within which an affected party may apply to strike out a notice of appeal or a record of appeal is expressly set in mandatory words. Before the amendment in 2002, the rule provided that such applications may be brought “at any time” and we are in no doubt that the primary focus of the amendment was to address the abuse of that provision. Mr. Ngatia is of course right in objecting to the application as it was filed out of time. We also agree that the alternative prayer for leave to file a supplementary record is superfluous as Rule 89 makes no provision for seeking leave. On both counts we order that the Notice of Motion dated 15th October 2004 be and is hereby struck out. Costs to the Respondents.
Dated and delivered at NAIROBI this 14th .day of January 2005.
P.K. TUNOI
……………….
JUDGE OF APPEAL
P.N. WAKI
……………
JUDGE OF APPEAL
W.S. DEVERELL
……………..
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR