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Court of AppealPartially AllowedCivil Application 252 of 2008· [2009] KECA 174 (KLR)

OCCIDENTAL INSURANCE CO. LTD v PANGANI CHEMIST LIMITED [2009] KECA 174 (KLR)

Court of Appeal
2 October 2009
EOE.O. O'KubasuDAD.K.S. AganyanyaJNJ.G. Nyamu
719 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 six years, confirming that unexplained inaction kills an appeal.

What this practically means

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Executive summary

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This is a brief, unopposed ruling of the Court of Appeal at Nairobi in a notice of motion by Occidental Insurance Co. Ltd seeking, under Rules 80 and 82 of the Court of Appeal Rules, to strike out a notice of appeal filed by Pangani Chemist Limited against the High Court judgment of Mwera, J of 7 July 2003 dismissing the respondent's suit in HCCC No. 2172 of 2000 with costs. The supporting affidavit of Joseph Njoroge Mbugua traced the chronology: the suit was filed on 7 December 2000 and dismissed with costs on 7 July 2003; the respondent filed a notice of appeal on 10 July 2003 and applied for certified proceedings the same day; the High Court registry wrote in July 2003 and again in March 2005, when the respondent's advocates were notified that proceedings would be supplied on payment of Kshs 2,430; the respondent applied for stay of execution in March 2004 and complied with the deposit orders by September 2004; but nothing was done to prosecute the appeal. When the application came up on 1 October 2009, counsel appeared for the applicant only; there was no appearance for the respondent and no replying affidavit was filed. The Court, comprising O'Kubasu, Aganyanya and Nyamu, JJA, held that the respondent was plainly not interested in pursuing its appeal and that the application could not be resisted. It allowed the application and struck out the notice of appeal with costs to the applicant. The decision binds lower courts and the Court of Appeal itself on the narrow point that an unopposed strike-out application, supported by unchallenged evidence of an intending appellant's prolonged inaction, must be allowed. No authorities were cited and no wider principle was enunciated.

Key legal issues

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Whether an unchallenged account of inordinate inaction by an intending appellant justifies striking out the notice of appeal

Holding

Yes - the uncontroverted affidavit showing years of delay and no interest in prosecuting the appeal entitled the applicant to have the notice of appeal struck out

Reasoning

The applicant relied on Rules 80 and 82 of the Court of Appeal Rules, supported by an affidavit tracing the history: suit filed December 2000, dismissed with costs 7 July 2003, notice of appeal filed 10 July 2003, and thereafter no steps by the respondent except a stay application in 2004. The application was unopposed - the respondent, though served with a hearing notice, did not appear and filed no replying affidavit. The Court treated the absence of opposition and of any prosecutorial activity as proof of disinterest, and allowed the application. The ruling is a short unopposed-motion disposition, not an exposition of principle; its binding content is limited to the proposition that an unanswered strike-out application on clear delay cannot be resisted.

p. 2

Legal principles established

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  • Where an intended appellant files no replying affidavit and takes no steps to prosecute an appeal, an unopposed application to strike out the notice of appeal will be allowed

Court orders

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  1. 1.The application dated 3rd September 2008 is allowed
  2. 2.The notice of appeal dated 7th July 2003 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 82
On appeal from
High Court of Kenya at Milimani Commercial Courts
HCCC No. 2172 of 2000
Jurisdiction invoked
Rules 80 and 82 of the Court of Appeal Rules (inherent/appellate jurisdiction to strike out a notice of appeal in an intended 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, "OCCIDENTAL INSURANCE CO. LTD v PANGANI CHEMIST LIMITED [2009] KECA 174 (KLR)", Case Analysis (2009). Civil Application 252 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/174/eng@2009-10-02

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