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 Appeal (Application) No. 55 of 2004

GRACE WAKONYO THIONGO v GITAU TIRIA [2007] KECA 303 (KLR)

Court of Appeal of Kenya
23 May 2007
Philip Kiptoo TunoiP. K. TunoiPWP. N. WakiWDW. S. Deverell
205 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck out an appeal notice left dormant for nine years, confirming that unprosecuted appeals can be terminated for want of prosecution.

What this practically means

#

Executive summary

#
This is a short interlocutory ruling of the Court of Appeal at Nairobi (Tunoi, Waki and DevereLL, JJA) delivered on 23rd May 2007 in a succession-related matter arising from H.C. Succession Cause No. 2386 of 1996 before O'Kubasu, J. The applicant moved by Notice of Motion dated 11th May 2004 to strike out a Notice of Appeal lodged on 30th November 1998 following the High Court ruling of 18th November 1998. The court noted that although the Notice of Appeal had been lodged, no Record of Appeal had been filed in the approximately nine years that had since elapsed. The respondent, despite due service of the notice of motion and the hearing notice, did not appear and was unrepresented at the hearing. The Court of Appeal accordingly allowed the application and struck out the Notice of Appeal, effectively terminating the intended appeal for want of prosecution. It ordered the respondent to pay the applicant's costs of the application. The ruling does not cite any authorities or statutory provisions, contains no separate judicial opinions, and is a single judgment of the whole court. Its practical value for advocates is as a precedent that an unprosecuted intended appeal - here, one left dormant for some nine years - is vulnerable to being struck out, and that the burden of explaining such inordinate delay rests on the party who lodged the notice.

Key legal issues

#
01

Striking out a Notice of Appeal for want of prosecution

Holding

Where a party lodges a Notice of Appeal but fails to file the Record of Appeal for approximately nine years, the notice will be struck out.

Reasoning

The court found that despite the lodging of the Notice of Appeal on 30th November 1998, no Record of Appeal had been filed, and roughly nine years had elapsed. The applicant moved by Notice of Motion dated 11th May 2004 to strike out the notice. The respondent, though duly served with the motion and hearing notice, did not appear. On those undisputed facts the court allowed the motion and struck out the Notice of Appeal, awarding costs to the applicant.

p. 1

Legal principles established

#
  • An appeal that is not prosecuted - where no Record of Appeal is filed for an inordinate period after lodgement of the Notice of Appeal - may be struck out for want of prosecution.

Court orders

#
  1. 1.The Notice of Appeal lodged on 30th November 1998 is struck out
  2. 2.The costs of the application to be paid by the respondent (Grace Wakonyo Thiongo) to the applicant
On appeal from
High Court of Kenya at Nairobi
H.C. Succession Cause No. 2386 of 1996
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules in respect of an intended appeal from the High Court (succession cause)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "GRACE WAKONYO THIONGO v GITAU TIRIA [2007] KECA 303 (KLR)", Case Analysis (2007). Civil Appeal (Application) No. 55 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/303/eng@2007-05-23

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