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Court of AppealStruck OutCivil Appeal (Application) No. 232 of 2008· [2009] KECA 279 (KLR)

GITHAIGA MUHIU & another v SAVINGS & LOAN (K) LIMITED [2009] KECA 279 (KLR)

Court of Appeal of Kenya
5 June 2009
SBS.E.O. BosirePWP.N. WakiJNJ.G. Nyamu
648 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal filed late by four and a half years, meaning the High Court judgment against the bank now stands unchallenged.

What this practically means

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Executive summary

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This was a Court of Appeal application dated 12th August 2008, brought under Rule 80 of the Court's Rules, seeking to strike out a Notice of Appeal filed by Savings & Loan (K) Limited against the judgment of Waweru, J delivered on 24th November 2004 in H.C.C.C. No. 594 of 2001. The applicants deponed that the respondent had failed to file and serve a Record of Appeal within the prescribed 60 days despite repeated reminders over 2006, 2007 and 2008. In reply, the respondent attributed the delay to the misplacement of the judge's handwritten proceedings, apparently filed in Milimani H.C.C.C. No. 181 of 1999 and produced as defence exhibit D2 at trial, and pointed to a joint interest-earning account in which the decretal amount of Kshs.3,819,061.80 had been deposited by both parties. The Court, composed of Bosire, Waki and Nyamu, JJA, held that a delay of slightly over four and a half years was inordinate and unexplained: beyond the Notice of Appeal and a single letter of 6th December 2004 requesting typed proceedings, no tangible evidence of follow-up was exhibited, and no formal application was made to reconstitute the allegedly missing file. The delay was held prejudicial to the applicants given the locked deposit and the anxiety and lack of finality occasioned. The Notice of Appeal was struck out with costs to the applicants. As an interlocutory strike-out ruling, it did not disturb the High Court judgment itself, which therefore remains in force unchallenged.

Key legal issues

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01

Whether the delay in lodging the Record of Appeal was inordinate and excusable

Holding

The delay of slightly over four and a half years was inordinate and no sufficient reasons were given for it; the Notice of Appeal was struck out under Rule 80.

Reasoning

The court found the only demonstrated steps by the respondent were filing the Notice of Appeal and one letter of 6th December 2004 requesting typed proceedings. Claims that the delay resulted from misplacement of the judge's handwritten proceedings were unsupported by tangible evidence of inquiry, and no formal application was made to have the missing file reconstituted. The delay, coupled with decretal funds locked in a joint account and the resulting lack of finality, was held prejudicial to the applicants.

p. 2

Legal principles established

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  • A party who delays lodging a record of appeal after filing a Notice of Appeal must give tangible evidence of diligent follow-up; mere assertion that inquiries were made, without supporting evidence or an application to reconstitute a missing file, does not excuse an inordinate delay.
  • An inordinate delay of about four and a half years without lodging a record of appeal is prejudicial to the respondent to the appeal, taking into account funds held in joint deposit and the anxiety and lack of finality caused.

Court orders

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  1. 1.The Notice of Appeal dated 6th December 2004 and lodged on 14th December 2004 is struck out
  2. 2.Costs of the application awarded to the applicants

Authorities

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Legislation

  • Court of Appeal RulesRule 80
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 594 of 2001
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules

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, "GITHAIGA MUHIU & another v SAVINGS & LOAN (K) LIMITED [2009] KECA 279 (KLR)", Case Analysis (2009). Civil Appeal (Application) No. 232 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/279/eng@2009-06-05

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