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Court of AppealPartially AllowedCivil Appeal 336 of 2005· [2006] KECA 177 (KLR)

Ojuando v Nimrod Bwibo (Chairman Maseno University Council) & 2 others (Civil Appeal 336 of 2005) [2006] KECA 177 (KLR)

Court of Appeal of Kenya
14 July 2006
SBS. E. O. BosireEOE. O. O'KubasuPWP. N. Waki
1,903 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that an abandoned notice of appeal isn't automatically dead—you must ask the court to formally strike it out.

What this practically means

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Executive summary

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This is an interlocutory ruling of a three-judge bench of the Court of Appeal at Kisumu on a motion dated 5th June 2006 brought by the appellant, Gad David Ojuando, under rule 80 of the Court of Appeal Rules, seeking to strike out the respondents' notice of appeal, their notice of cross-appeal, and any appeal they might file, ahead of the hearing of the main appeal against the judgment of Warsame, J. of 23rd May 2005 in Kisumu H.C.C.C. No. 101 of 2003. On the first limb, the court adopted the construction of rule 82 in Dolphin Palms Ltd, holding that a lapsed notice of appeal is not automatically deemed withdrawn; the court must be moved, by a full bench on an application under rule 80, for such an order. The application having now been made, the respondents' abandoned notice of appeal of 6th June 2005 was struck out. On the second limb, the court declined to strike out the respondents' notice of cross-appeal filed 6th April 2006. Although expressing sympathy with the appellant's complaint about the asymmetry in the rules between appellants and cross-appeallants, and questioning the rationale of the 1984 amendment to rule 90(2), the court held that the rule requires filing not less than 30 days before the hearing, not before the appeal is fixed for hearing; the appeal had neither been heard nor disposed of, so the notice was timeously filed. The court deprecated the respondents' dilatory conduct and expressed its displeasure through costs. The amorphous third prayer to strike out any appeal if filed was refused. Costs were assessed at Shs.5,000/= and Shs.15,000/= respectively, payable before the next hearing date, in default execution to issue.

Key legal issues

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01

Whether an abandoned notice of appeal is automatically deemed withdrawn under rule 82

Holding

No; the court must be moved for an order declaring the notice deemed withdrawn, and such order can only be made by a full bench on an application under rule 80

Reasoning

The court noted conflicting decisions on the construction of rule 82 and adopted the construction in Dolphin Palms Ltd. The phrase 'unless the court otherwise orders' shows a court order is necessary; there is no express provision requiring a party to move the court, but a careful reading of the rule reveals such an application is necessary. Once moved, the court struck out the abandoned notice of appeal.

p. 2
02

Whether a notice of cross-appeal filed after the appeal was fixed for hearing, but more than 30 days before the hearing, is timeous under rule 90(2)

Holding

Yes; the amended rule refers to the actual hearing and disposal of the appeal, and since the appeal had neither been heard nor disposed of, the notice was timeously filed

Reasoning

The court acknowledged sympathy with the appellant's complaint about the asymmetry between appellants and cross-appellants, and questioned the rationale for the 1984 amendment, but held that sympathy cannot override the natural construction of the rule. The only ground of challenge was inordinate delay; the filing complied with the rules, so the notice could not be struck out. The court nonetheless deprecated the respondents' conduct and expressed displeasure through an award of costs against them.

p. 3
03

Whether there can be an abuse of court process where a party follows procedures established by the law

Holding

No; a party pursuing an option available under the rules, such as filing a notice of cross-appeal where an appeal is already on record, cannot be said to abuse court process

Reasoning

This was the respondents' submission, accepted implicitly by the court's refusal to strike out the cross-appeal: the respondents took the more convenient option available under rule 90 since an appeal had already been filed by the applicant.

p. 3

Legal principles established

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  • A notice of appeal that lapses under rule 82 is not automatically deemed withdrawn; the court must be moved, by application under rule 80 before a full bench, for an order declaring the notice deemed to have been withdrawn
  • Under rule 90(2) as amended by Legal Notice No. 14 of 1984, a respondent's notice of cross-appeal may be filed not less than 30 days before the hearing of the appeal; filing before the appeal is fixed for hearing is not required

Court orders

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  1. 1.That the notice of appeal filed by the respondents on 6th June, 2005 be and is hereby struck out
  2. 2.That the prayer for striking out the notice of cross appeal dated 5th April, 2006 be and is hereby dismissed
  3. 3.That the prayer for striking out any appeal, if any, filed by the respondents be and is hereby struck out
  4. 4.That the costs of the struck out notice of appeal be and are hereby awarded to the applicant and are assessed at Shs.5,000/=
  5. 5.That the costs of the application relating to the notice of cross appeal be borne by the respondents and are hereby assessed at shs.15,000/=
  6. 6.That the costs assessed herein under (4) and (5) be paid before the next hearing date of the main appeal, and in default execution shall issue forthwith

Authorities

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Legislation

  • Court of Appeal Rulesrule 80
  • Court of Appeal Rulesrule 82
  • Court of Appeal Rulesrule 82(a)
  • Court of Appeal Rulesrule 90
  • Court of Appeal Rulesrule 90(2)
  • Court of Appeal Rulesrule 2 (as amended by Legal Notice No. 14 of 1984)

Cases cited (5)

  • Kali Security Co. Ltd. v Patrick Mureithi
    Kisumu Civil Appeal/Application No. 4/04
  • Kamau Kibunja v Noordin Construction (k) Ltd
    C. Appl. NAI. 172/88 (ur)
  • Bullion Bank Ltd v Fulchand Manek & Brothers
    Civil Appl. NAI. 239/97 (ur)
  • Dolphin Palms Ltd v Al-Nasibh Trading Co. Ltd & 2 others
    Civil Appl. NAI. 112/99 (ur)
  • K & K Amman Ltd vs. Mount Kenya Game Ranch & others
    [2003] 1 EA 106
On appeal from
High Court of Kenya at Kisumu
Kisumu H.C.C.C. No. 101 of 2003
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (application to strike out notice of appeal and notice of cross-appeal in a pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ojuando v Nimrod Bwibo (Chairman Maseno University Council) & 2 others (Civil Appeal 336 of 2005) [2006] KECA 177 (KLR)", Case Analysis (2006). Civil Appeal 336 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/177/eng@2006-07-14

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