Victoria K. Wills v Burkhard Koartis
The bottom line
#Kenya's Court of Appeal ended a stalled appeal because the appellant never filed the actual appeal papers in time — the original judgment stands.
What this practically means
#Executive summary
#Key legal issues
#Whether a notice of appeal ought to be struck out where no appeal has been filed within the prescribed time.
Yes. The court struck out the notice of appeal filed on 14th September 1999 because no appeal had been filed within the prescribed time and no application for copies of proceedings had been made under rule 81 of the Court of Appeal Rules.
The court treated the failure to file the appeal within the prescribed time as decisive. It noted the absence of any application for copies of proceedings under rule 81. The only factor that could have saved the notice, an application for extension of time under rule 4, was said to have been made but was not exhibited before the court. With nothing on the record regularising the default, the court found no reason to retain the notice of appeal, struck it out, and awarded the applicant costs including the costs of the motion.
Whether an alleged but unexhibited application for extension of time under rule 4 could preserve the notice of appeal.
No. The court held that a bare assertion that an extension application had been made under rule 4, without exhibiting the application, could not save the notice of appeal from being struck out.
The judgment records that, although it was said an application for extension of time had been made under rule 4, the application was not exhibited. The court required any such filing to be placed before it; an application that is not exhibited cannot be acted upon, and the court will not assume its existence or merits. The non-exhibition of the extension application therefore left the notice of appeal without any answer to the striking-out motion, and the notice was struck out with costs including the costs of the motion.
Legal principles established
#- Where no appeal has been filed within the prescribed time and no application for copies of proceedings has been made under rule 81, the notice of appeal is liable to be struck out.
- An alleged application for extension of time under rule 4 which is not exhibited before the court cannot save a notice of appeal from being struck out.
- In such circumstances the court will find no reason to retain the notice of appeal and will strike it out with costs.
Court orders
#- 1.The notice of motion dated 22nd June, 2001 succeeds (the application to strike out is allowed).
- 2.The notice of appeal filed on 14th September, 1999 is struck out.
- 3.The applicant is awarded the costs of the striking out, including the costs of the motion.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 579 of 1993
- Jurisdiction invoked
- Court of Appeal Rules - notice of motion to strike out a notice of appeal; the ruling applies rule 81 (application for copies of proceedings) and rule 4 (extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Victoria K. Wills v Burkhard Koartis", Case Analysis (2002). Civil Application No. 372 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/122/eng@2002-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.