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Court of AppealAllowedCivil Appli No. 313 of 2002· [2008] KECA 187 (KLR)

Solomon Anusu Makaya v Nairobi City Council [2008] KECA 187 (KLR)

Court of Appeal
27 June 2008
EGE. M. GithinjiJOJ. W. Onyango OtienoDAD. K. S. Aganyanya
520 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out Nairobi City Council's appeal because it missed the 60-day deadline to lodge it, showing that delay kills appeals.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Nairobi (Githinji, Onyango Otieno and Aganyanya, JJA) on a Notice of Motion filed on 12th November 2002 under rule 80 of the Court of Appeal Rules seeking to strike out a Notice of Appeal filed by Nairobi City Council on 12th March 2002. The Notice of Appeal followed judgment of Rawal, J in High Court Civil Case No. 2866 of 1995 delivered on 6th March 2002. The applicant complained that although the respondent had applied for copies of the proceedings on 11th March 2002, it took no further step to lodge the intended appeal, even after receiving seven days' notice of the application on 22nd August 2002. The respondent filed a replying affidavit through its legal officer but was unrepresented at the hearing despite service of the hearing notice on 13th February 2008. The court held that the respondent's failure to appear demonstrated lack of seriousness about the intended appeal, and that although the applicant ought to have annexed a copy of the High Court judgment, the respondent had failed to lodge the appeal within the 60 days stipulated by rule 81(1) or to show an extension of time under the proviso to rule 81(1). The application was allowed, the Notice of Appeal struck out, and costs awarded to the applicant. The decision binds subordinate courts and the High Court on the consequences of non-compliance with rule 81(1).

Key legal issues

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01

Whether the Notice of Appeal should be struck out under rule 80 for failure to comply with rule 81(1)

Holding

The application was allowed and the Notice of Appeal was struck out because the respondent neither lodged the appeal within 60 days nor showed an extension of time under the proviso to rule 81(1).

Reasoning

Judgment was delivered on 6th March 2002 and the Notice of Appeal filed on 12th March 2002, but no step was taken to lodge the appeal within the 60-day window. The respondent, though served with the hearing notice, did not appear to support its replying affidavit. The court treated the non-appearance and inaction as evidence of lack of seriousness in prosecuting the intended appeal and struck out the notice with costs.

p. 2

Legal principles established

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  • An intended appeal must be lodged within the 60 days stipulated by rule 81(1) of the Court of Appeal Rules, or the applicant must show that the time was extended under the proviso to rule 81(1) and that the extended time has not expired; failure to do so exposes the Notice of Appeal to being struck out under rule 80.
  • A respondent's failure to attend a hearing, despite service, and failure to take any step to prosecute an intended appeal indicate lack of seriousness and justify striking out the Notice of Appeal.

Court orders

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  1. 1.The application dated 24th October 2002 and lodged on 12th November 2002 is allowed
  2. 2.The Notice of Appeal dated and lodged in Court on 12th March 2002 is struck out
  3. 3.Costs of the application to the applicant

Authorities

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Legislation

  • Court of Appeal Rulesrule 80
  • Court of Appeal Rulesrule 81(1) and proviso
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2866 of 1995
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (inherent/appellate jurisdiction to strike out a Notice of Appeal)

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, "Solomon Anusu Makaya v Nairobi City Council [2008] KECA 187 (KLR)", Case Analysis (2008). Civil Appli No. 313 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/187/eng@2008-06-27

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