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Court of AppealPartially AllowedCivil Appeal (Application) Nai 151 of 2005· [2007] KECA 11 (KLR)

American Life Insurance Company (k) Limited v Priscilla Wanjiku Kamunya & 1 other

Court of Appeal of Kenya
6 July 2007
EGE. M. GithinjiJOJ. W. Onyango OtienoWDW. S. Deverell
757 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that failing to file an appeal within 60 days of lodging a notice of appeal means the notice is deemed withdrawn and can be struck out.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on an application under rules 80 and 82 of the Court of Appeal Rules to strike out a notice of appeal. The applicant, American Life Insurance Company (K) Limited, had been a third party in Nairobi HCCC No. 3684 of 1991 (Francis Njenga Mbugua v Priscilla Wanjiku Kamunya), a road traffic accident claim. On 26th October 1998 the High Court (Angáwa J) dismissed the defendant's indemnity claim against her insurers on the ground that the commercial vehicle policy did not cover the plaintiff, who was being carried in the course of his employment, while entering judgment for the plaintiff against the defendant. The defendant lodged a notice of appeal on 5th November 1998 against the dismissal of her claim against the insurer, and applied for certified proceedings two days later, but never instituted the appeal. The applicant's advocates reminded her counsel three times in 2001 and again in May 2004; there was no response, no replying affidavit, and no attendance at the hearing. The Court of Appeal held that under rule 81(1) the appeal should have been filed within 60 days of lodging the notice (excluding certified typing time), and that under rule 82(a) failure to do so meant the 1st respondent was deemed to have withdrawn her notice. The application was allowed, the notice of appeal dated 4th November 1998 and lodged on 5th November 1998 was struck out from the Register, and costs were awarded to the applicant. The ruling binds subordinate courts and the High Court on the operation of the deeming provision in rule 82(a).

Key legal issues

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01

Effect of failure to institute an appeal within the time prescribed by rule 81(1)

Holding

The 1st respondent, having filed no appeal within 60 days of lodging the notice of appeal (excluding certified typing time), was deemed to have withdrawn her notice of appeal under rule 82(a).

Reasoning

The notice of appeal was lodged on 5th November 1998. The application to strike out was filed nearly seven years later. Despite three reminders by the applicant's advocates in 2001 and further correspondence in 2004, the 1st respondent's advocates took no steps to institute the appeal, filed no replying affidavit and did not attend the hearing. The court concluded the appeal would never be filed and the deeming provision applied.

p. 2

Legal principles established

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  • Under rule 82(a) of the Court of Appeal Rules, a party who lodges a notice of appeal but fails to institute the appeal within the appointed time is deemed to have withdrawn the notice of appeal, and the notice is liable to be struck out on the application of an affected party.

Court orders

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  1. 1.That the notice of appeal dated 4th November 1998 and lodged on 5th November 1998 be struck out from the Register
  2. 2.That the 1st respondent, having been deemed to have withdrawn the notice of appeal, is precluded from prosecuting the intended appeal
  3. 3.That costs of the application be awarded to the applicant
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 3684 of 1991
Jurisdiction invoked
Rules 80 and 82 of the Court of Appeal Rules (inherent appellate jurisdiction over notices of appeal under the Court of Appeal Rules)

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, "American Life Insurance Company (k) Limited v Priscilla Wanjiku Kamunya & 1 other", Case Analysis (2007). Civil Appeal (Application) Nai 151 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/11/eng@2007-07-06

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