AMERICAN LIFE INSURANCE COMPANY (K) LIMITED v PRISCILLA WANJIKU KAMUNYA & ANOTHER [2007] KECA 251 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a seven-year-old dormant notice of appeal, confirming that not filing an appeal within 60 days means abandoning it.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st respondent's failure to institute her appeal within the prescribed time deemed her to have withdrawn her notice of appeal under rule 82(a).
Yes. Having failed to lodge the appeal within the time prescribed by the Rules, the 1st respondent was deemed to have withdrawn her notice of appeal, and the notice was struck out from the Register.
The Court applied rule 82(a), which deems a party who fails to institute an appeal within the appointed time to have withdrawn the notice of appeal. Rule 81(1) prescribed 60 days from lodgment of the notice, excluding certified time for preparing the proceedings. Although the 1st respondent's advocates promptly applied for a copy of the proceedings and judgment, no appeal was ever filed. Over nearly seven years the applicant's advocates repeatedly reminded them and threatened the striking-out application, yet no action followed, no replying affidavit was filed and counsel did not attend the hearing. The long inaction evidenced no intention to appeal.
Whether the delay in instituting the appeal was inordinate and unexplained, justifying striking out the notice of appeal.
Yes. The application was filed nearly seven years after the notice of appeal was lodged, no appeal had been instituted, and the 1st respondent offered no explanation or opposition; the delay was inordinate and unexplained.
The notice of appeal was lodged on 5th November 1998 against the part of the High Court decision dismissing the 1st respondent's indemnity claim against her insurers. Despite three reminders in 2001, two requests by her advocates for forbearance, and a letter of 28th May 2004 signalling the striking-out application, her advocates took no step to institute the appeal. The prolonged inaction demonstrated that she did not intend to file any appeal, and her advocates neither filed a replying affidavit nor attended the hearing. The notice was struck out with costs to the applicant.
Legal principles established
#- A party who lodges a notice of appeal but fails to institute the appeal within the appointed time is, by operation of rule 82(a) of the Court of Appeal Rules, deemed to have withdrawn the notice of appeal, and the notice is liable to be struck out from the Register on that basis.
- The appointed time for instituting an appeal is 60 days from the lodgment of the notice of appeal, excluding such time as the Registrar of the superior court certifies as required for the preparation and delivery of a copy of proceedings where the intended appellant applied for the copy within the stipulated time.
Court orders
#- 1.The notice of appeal dated 4th November, 1998 and lodged on 5th November, 1998 struck out from the Register.
- 2.Costs of the application 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 (application to strike out a notice of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "AMERICAN LIFE INSURANCE COMPANY (K) LIMITED v PRISCILLA WANJIKU KAMUNYA & ANOTHER [2007] KECA 251 (KLR)", Case Analysis (2007). Civil Application 151 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/251/eng@2007-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.