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Court of AppealDismissedCivil Application No. NAI. 182 of 2011 (Nyr. 17/2011)

Julius Kiruma Kariuki v Kamau Mwangi & 3 others [2011] KECA 10 (KLR)

Court of Appeal
2 December 2011
1,233 words in judgment
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·~5 min to read original · ~4 min brief

The bottom line

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The Court of Appeal ruled you cannot force a party to abandon an appeal when court delays, not their inaction, explain the delay.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (O'Kubasu, Githinji and Onyango Otieno, JJ.A) on a notice of motion dated 28th June 2011 by Julius Kiruma Kariuki. He sought four orders: withdrawal of the notice of appeal filed by the second and third respondents on 22nd June 2009 against the judgment of Makhandia, J in H.C.C.C. No. 64 of 2003 delivered on 18th June 2009; setting aside or discharge of the stay orders obtained by those respondents on 24th September 2010; alternatively, an order that they file their record of appeal within a court-prescribed period failing which the stay orders would stand automatically discharged; and costs. The applicant argued that since the notice of appeal and the stay orders, the respondents had taken no essential steps towards the appeal and had not sought extension of time, showing they no longer wished to pursue it. The respondents countered that they had applied immediately after judgment for copies of the proceedings and judgment and had sent repeated reminders and made personal visits to the registry, but the copies were never supplied. The court agreed with the respondents: they had lodged the notice of appeal timeously and persistently pressed for the copies, and the applicant did not assert that the copies were ready but uncollected. It would be unfair to expect them to mount the appeal, and any order to file the record within a prescribed period would be an order in vain. As the notice of appeal could not be withdrawn, there was no basis for setting aside the stay orders. The application was dismissed with costs to the second and third respondents. The ruling binds subordinate courts and the High Court on the point that a party cannot be penalised for delay in filing a record of appeal where the registry has not supplied the certified proceedings it needs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Notice of Appeal filed on 22nd June 2009 by the 2nd and 3rd respondents should be withdrawn
  2. 2.Whether the stay orders obtained on 24th September 2010 should be set aside or discharged
  3. 3.Whether the 2nd and 3rd respondents should be directed to file their record of appeal within a prescribed period failing which the stay orders would stand discharged

Key legal issues

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01

Whether an intending appellant who has filed a notice of appeal but not the record may be compelled to proceed or have the notice withdrawn

Holding

The application was premature; the respondents had timeously lodged the notice of appeal and persistently sought copies of the proceedings and judgment, which the registry had not supplied, so they could not be faulted for not filing the record

Reasoning

The judgment was delivered on 18th June 2009; on 19th June 2009 the respondents' then advocates wrote seeking certified copies, and a notice of appeal was lodged timeously. Successive advocates wrote on 25th May 2010 and 15th February 2011 pressing for the copies, with endorsements indicating delivery to the registry. The applicant did not contend the copies were ready but uncollected. In these circumstances, expecting the respondents to mount the appeal, or ordering them to file the record within a prescribed period, would be unfair and an order in vain.

p. 2
02

Whether the stay orders obtained on 24th September 2010 should be discharged

Holding

The stay orders could not be set aside because the notice of appeal on which they rested could not be withdrawn

Reasoning

Since the application for withdrawal of the notice of appeal failed, the foundation for setting aside or discharging the stay orders obtained earlier fell away. The discharge of stay orders was contingent on the withdrawal of the notice of appeal, and neither could be granted where the respondents were blameless for the delay in filing the record.

p. 2

Legal principles established

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  • An applicant for withdrawal of a notice of appeal must demonstrate inaction by the intending appellant; where the appellant has diligently sought the certified proceedings and judgment and the registry has not supplied them, the application is premature and cannot be granted
  • A court will not prescribe a period for filing a record of appeal where compliance is impossible because the certified copies of proceedings and judgment have not been supplied by the registry

Court orders

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  1. 1.The application dated 28th June 2011 is dismissed with costs to the second and third respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
High Court of Kenya at Nyeri
H.C.C.C. No. 64 of 2003
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal over a notice of appeal filed in an intended appeal from the High Court (Court of Appeal Rules procedure for withdrawal of a notice of appeal)

Relief refused

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Withdrawal of the Notice of Appeal filed on 22nd June 2009

The application was premature; the respondents had diligently sought copies of proceedings and could not file the record without them

p. 2

Setting aside or discharge of the stay orders obtained on 24th September 2010

The stay orders were premised on a notice of appeal that could not be withdrawn, so there was no basis for setting them aside

p. 2

Direction that the 2nd and 3rd respondents file their record of appeal within a prescribed period failing which the stay orders stand discharged

Such an order would be in vain as the respondents could not comply without copies of the proceedings and judgment, which the registry had not supplied

p. 2

Costs

The application is dismissed with costs to the second and third respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In those circumstances, it would be unfair to expect the respondents to mount an appeal as that would not to be possible.
p. 2Prematurity of application to withdraw notice of appeal where registry has not supplied proceedings
It would also not be proper to order the respondents to file record of appeal within a period to be prescribed as that would be an order in vain since the respondents would not be expected to comply with such an order without their being supplied with the copies of the proceedings and judgment.
p. 2Court will not make a compliance order that is impossible to satisfy
In the result, the application lacks merit and cannot be granted. It is dismissed with costs to the second and third respondents.
p. 3Final orders - dismissal with costs

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, "Julius Kiruma Kariuki v Kamau Mwangi & 3 others [2011] KECA 10 (KLR)", Case Analysis (2011). Civil Application No. NAI. 182 of 2011 (Nyr. 17/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/10/eng@2011-12-02

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