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Court of AppealAllowedCivil Appeal No. Nai. 123 of 2002 (Nyr 9/02)· [2002] KECA 283 (KLR)

IRENE WANJIRA MARARO vs JOSEPH NGUTHIRU KIN’GARUI [2002] KECA 283 (KLR)

Court of Appeal of Kenya
31 October 2002
JGJ.E. GicheruSBS.E.O. BosireEOE. Owuor
222 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a Notice of Appeal because the appellant never filed the appeal record even after getting extra time.

What this practically means

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Executive summary

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This is a short unopposed ruling of the Court of Appeal at Nyeri (Gicheru, Bosire and Owuor JJ.A) delivered on 31st October 2002 in Civil Appeal No. Nai. 123 of 2002 (Nyr 9/02). The applicant, Irene Wanjira Mararo, applied to strike out a Notice of Appeal lodged by the respondent, Joseph Nguthiru Kin'garui, in the High Court at Nyeri on 29th March 1994, arising from a judgment and decree of Tunoi, J dated 8th March 1994 in H.C.C.C No. 268 of 1991. Counsel for the respondent was served with the hearing notice but did not appear. The Court noted that although it had extended time on 24th October 1995 for the respondent to lodge the record of appeal, the record had never been lodged. It therefore held that an essential step in the proceedings under rule 80 of the Court of Appeal Rules had not been taken. The application was granted and the Notice of Appeal was struck out with costs to the applicant. The ruling is brief and cites no authorities; its binding significance lies in confirming that a Notice of Appeal is liable to be struck out where the record of appeal is not lodged within the time extended by the Court.

Key legal issues

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01

Whether a Notice of Appeal may be struck out for failure to lodge the record of appeal within extended time

Holding

Yes. The Court held that failure to lodge the record of appeal despite an extension of time means an essential step under rule 80 has not been taken, justifying striking out the Notice of Appeal.

Reasoning

The Notice of Appeal was lodged on 29th March 1994. The Court had, on 24th October 1995, extended time to lodge the record of appeal, yet the respondent had still not lodged the appeal. The Court treated lodging of the record as an essential step in the proceedings under rule 80 of the Court of Appeal Rules, and its omission as grounds for striking out the Notice of Appeal. The application was unopposed, as the respondent, though served with the hearing notice, did not appear.

p. 2

Legal principles established

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  • Where a party fails to lodge the record of appeal within the time extended by the Court, an essential step in the proceedings under rule 80 of the Court of Appeal Rules has not been taken and the Notice of Appeal is liable to be struck out.

Court orders

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  1. 1.The Notice of Appeal lodged in the superior court on 29th March, 1994 is struck out
  2. 2.Costs of the application awarded to the applicant
On appeal from
High Court of Kenya at Nyeri
H.C.C.C No. 268 of 1991
Jurisdiction invoked
Court of Appeal Rules, rule 80 (application to strike out a Notice of Appeal for failure to take an essential step in the proceedings)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "IRENE WANJIRA MARARO vs JOSEPH NGUTHIRU KIN’GARUI [2002] KECA 283 (KLR)", Case Analysis (2002). Civil Appeal No. Nai. 123 of 2002 (Nyr 9/02). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/283/eng@2002-10-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.