Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appli NAI 103 of 2005· [2005] KECA 150 (KLR)

Zachariah Muhia Ng’ang’a v Abdul Hussein Omar & 3 others [2005] KECA 150 (KLR)

Court of Appeal of Kenya
29 July 2005
Philip Kiptoo TunoiP. K. TunoiEGE. M. GithinjiWDW. S. Deverell
375 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Filing a notice of appeal in Kenya is not enough — you must actually start the appeal on time or the court can strike it out.

What this practically means

#

Executive summary

#
This is a single-judgment ruling of the Court of Appeal at Mombasa (Tunoi, Githinji and Deverell, JJ.A.) on a notice of motion expressed to be brought under rules 80 and 82 of the Court of Appeal Rules, seeking to strike out a Notice of Appeal dated 24th March 2003 and lodged on 25th March 2003 against the judgment of the High Court at Mombasa (Omwitza and Sergon, JJ) dated 19th March 2003 in H.C.C.C. No. 591 of 1995. The applicant contended, and the respondents did not dispute, that no appeal had been instituted against the judgment. The respondents' only explanation was that copies of the proceedings and judgment had not been received, evidenced by a letter bespeaking copies dated 24th March 2003; but they could not show what they had done thereafter. Critically, they had neither sought an extension of time to lodge an intended appeal nor obtained a Certificate of Delay from the Registrar. The court held that under rule 82 the Notice of Appeal was deemed to have been withdrawn upon the respondents' failure to institute an appeal within the appointed time, and that the respondents consequently could not resist the application. The application was allowed, the Notice of Appeal was struck out, and the applicant was awarded the costs of the application. The decision binds subordinate courts and the High Court on the consequence of non-institution of an appeal under rule 82.

Key legal issues

#
01

Whether a Notice of Appeal can stand where no appeal has been instituted within the prescribed time

Holding

The Notice of Appeal is deemed withdrawn under rule 82 where the intended appellant fails to institute the appeal within the appointed time, and it is liable to be struck out on application.

Reasoning

The court noted it was undisputed that no appeal had been instituted against the judgment of 19th March 2003. The respondents' only explanation was non-receipt of proceedings and judgment, but they did not seek an extension of time or a Certificate of Delay from the Registrar, and their subsequent actions were unexplained. In those circumstances the respondents could not resist the striking-out application.

p. 1

Legal principles established

#
  • A respondent who has not instituted an appeal within the appointed time under rule 82, and who has neither sought an extension of time nor obtained a Certificate of Delay from the Registrar, cannot resist an application to strike out the Notice of Appeal, which is deemed withdrawn.

Court orders

#
  1. 1.The Notice of Appeal dated 24th March, 2003 and lodged in Court on 25th March, 2003 is struck out
  2. 2.The applicant shall have the costs of the application

Authorities

#

Legislation

  • Court of Appeal Rulesrule 80
  • Court of Appeal Rulesrule 82
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 591 of 1995
Jurisdiction invoked
Rules 80 and 82 of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Zachariah Muhia Ng’ang’a v Abdul Hussein Omar & 3 others [2005] KECA 150 (KLR)", Case Analysis (2005). Civil Appli NAI 103 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/150/eng@2005-07-29

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