John Muthomi Kanyoi v Peter Kamande Mungai & another [2009] KECA 271 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that an appellant who shows up to a hearing but refuses to argue their appeal has abandoned it, and it will be dismissed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal may dismiss an appeal where the appellant or his advocate is present at the hearing but declines to make submissions in support of the appeal
- 2.Whether such an appeal should be deemed abandoned and dismissed under the Court's inherent jurisdiction, given that the Court of Appeal Rules do not expressly cater for that scenario
Key legal issues
#Inherent jurisdiction to dismiss an unprosecuted appeal where the Rules are silent
The Court of Appeal Rules provide for dismissal where the appellant fails to appear (Rule 99(1)) and striking out where the appeal does not lie (Rule 80), but not where a present appellant declines to argue; in that gap the Court's inherent jurisdiction under Rule 1(3) applies and the appeal is dismissed as abandoned.
The Rules only cover non-appearance and procedural defects. Civil appellate proceedings are adversarial, so the Court is under no obligation to decide the merits of an appeal its own appellant declines to argue. Equity and the Court's inherent powers fill the lacuna: opting not to be heard is treated as abandonment, with dismissal as the consequence.
Abatement of appeal against a deceased respondent
Where a respondent dies and no legal representative is joined despite repeated adjournments to allow the parties to act, the appeal against that respondent abates under Rule 96(2) of the Court of Appeal Rules.
The 2nd respondent died in 1995. The appeal was adjourned on several occasions to permit verification of the death and substitution of his legal representative, but neither party took any action. The Court therefore declared the appeal against him abated under Rule 96(2) and proceeded only against the 1st respondent.
Legal principles established
#- Where an appellant or his advocate is present at the hearing of an appeal but opts not to be heard in support of it, the appeal is deemed abandoned and must be dismissed under the Court's inherent jurisdiction
- Appellate civil proceedings are adversarial; the Court has no duty to deal with the merits of an appeal that has not been prosecuted
Court orders
#- 1.The appeal against the 2nd respondent was declared to have abated under Rule 96(2) of the Court of Appeal Rules
- 2.The appeal against the 1st respondent is deemed abandoned and dismissed under the Court's inherent jurisdiction under Rule 1(3) of the Court of Appeal Rules
- 3.Costs of the appeal awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1802 of 1987
- Jurisdiction invoked
- Appeal to the Court of Appeal under the Court of Appeal Rules (Rule 1(3) invoked for the Court's inherent jurisdiction in dismissing the appeal)
Relief refused
#Prosecution of the appeal on its merits against the 1st respondent
Counsel for the appellant declined to make submissions; the appeal was deemed abandoned under the Court's inherent jurisdiction
Costs
The appeal against the 1st respondent is dismissed with costs to the 1st respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
where an appellant or his advocate who is present at the hearing of the appeal opts not to be heard in support of the appeal, like in this case, he should be deemed to have abandoned the appeal with the consequence that the appeal should be dismissed under the Court's inherent jurisdiction
Accordingly, in exercise of the Court’s inherent jurisdiction under Rule 1 (3), of the Court of Appeal Rules, the appeal against the 1st respondent is deemed as abandoned and is for that reason dismissed with costs to the 1st respondent.
The court thereupon made an order that the appeal against the 2nd respondent had abated under the provisions of Rule 96 (2) of the Court of Appeal Rules
Issues in the judgment
#The judgment records 'second appellant was vicariously liable' in the summary of the plaint, which appears to be a typographical error for 'second respondent'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Muthomi Kanyoi v Peter Kamande Mungai & another [2009] KECA 271 (KLR)", Case Analysis (2009). Civil Appeal 220 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/271/eng@2009-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.