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Court of AppealPartially AllowedCivil Appli 333 of 2006· [2008] KECA 271 (KLR)

TANJAL INVESTMENTS LIMITED & ANOTHER v CHARLES KOMBO OKIOGA & ANOTHER [2008] KECA 271 (KLR)

Court of Appeal of Kenya
24 January 2008
Philip Kiptoo TunoiP.K. TunoiEGE.M. GithinjiJOJ.W. Onyango Otieno
940 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a notice of appeal left idle for over seven years, warning that missed appeal deadlines without explanation will end appeals.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Tunoi, Githinji and Onyango Otieno, JJA) on a notice of motion dated 30th October 2006 by which Tanjal Investments Limited and Awadh Abeid Said sought to strike out a notice of appeal filed by Charles Kombo Okioga and Roselyn Kombo on 25th August 2000. The notice of appeal was lodged against a High Court ruling (Khaminwa J) of 14th August 2000 granting the applicants summary judgment for vacant possession and mesne profits. By 30th October 2003 no record of appeal had been filed; a first striking-out application was dismissed on 16th July 2004 with costs awarded to the applicants, the Court holding it would be unjust to strike out the notice though the respondents bore some blame for delay. The respondents nonetheless did not file the record of appeal, and over two further years elapsed. By the time of this application, more than seven years and three months had passed since the notice of appeal. The respondents' counsel made no submissions and no replying affidavit was filed. The Court held that the uncontroverted allegations stood, that rule 81(1) requires an appeal to be instituted within sixty days by lodging a memorandum and record of appeal, fee and security, and that the respondents' unexplained non-compliance left it no alternative but to allow the application. The notice of appeal was struck out with costs to the applicants and Savings & Loan Kenya Limited. The application was allowed in full.

Key legal issues

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01

Compliance with rule 81(1) of the Court of Appeal Rules on institution of appeals

Holding

The respondents' failure to lodge a record of appeal within sixty days of the notice of appeal, without any explanation, justified striking out the notice of appeal notwithstanding a prior ruling dismissing a similar application in 2004.

Reasoning

The Court observed that over seven years and three months had elapsed since the notice of appeal was filed without a record of appeal being lodged. Rule 81(1) requires institution of an appeal within sixty days. The earlier 2004 ruling had dismissed a striking-out application but expressly directed the respondents to pay costs, implying an expectation that they would prosecute the appeal. Having failed to do so and offered no explanation, the respondents left the Court no alternative but to grant the application as prayed.

p. 2
02

Effect of an uncontroverted supporting affidavit

Holding

Allegations in an affidavit in support of an application that is not controverted by a replying affidavit stand unchallenged.

Reasoning

The respondents, though represented by counsel, made no submissions opposing the application and filed no replying affidavit rebutting the applicants' sworn account of the delay and their suffering. The Court therefore accepted the applicants' allegations as established, including that no steps had been taken to pursue the appeal and that the applicants had been denied possession of the property for close to seven years.

p. 2

Legal principles established

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  • An appeal must be instituted by lodging a memorandum of appeal, record of appeal, prescribed fee and security for costs within sixty days of the notice of appeal, and unexplained failure to comply exposes the notice of appeal to being struck out.
  • Where an application to strike out a notice of appeal is supported by an uncontroverted affidavit, the allegations in that affidavit stand.
  • Once a party fails to institute an appeal within the prescribed time and offers no explanation for the failure, the Court has no alternative but to allow an application to strike out the notice of appeal.

Court orders

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  1. 1.The notice of appeal filed by the respondents on 25th August 2000 is struck out
  2. 2.The applicants and Savings & Loan Kenya Limited will have the costs of this application

Authorities

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Legislation

  • Court of Appeal RulesRule 81(1)
  • Court of Appeal RulesRule 112
On appeal from
High Court of Kenya, Mombasa
H.C.C.C No. 89 of 2000
Jurisdiction invoked
Rule 81(1) of the Court of Appeal Rules (application to strike out a notice of appeal for failure to institute an appeal within the prescribed time)

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, "TANJAL INVESTMENTS LIMITED & ANOTHER v CHARLES KOMBO OKIOGA & ANOTHER [2008] KECA 271 (KLR)", Case Analysis (2008). Civil Appli 333 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/271/eng@2008-01-24

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