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Court of AppealPartially AllowedCivil Application No. 103 of 2011· [2012] KECA 123 (KLR)

Amos Wamunyua & another v Nehemiah Ndumo Gitahi & another [2012] KECA 123 (KLR)

Court of Appeal of Kenya
5 July 2012
EGE. M. GithinjiHOH. M. OkwenguDavid Kenani MaragaD. K. Maraga
984 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that if you file a notice of appeal but don't follow through in time, your appeal is treated as abandoned — and you pay costs.

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 (Githinji, Okwengu and Maraga, JJA) on a notice of motion dated 29th March 2011 brought by Amos Wamunyua and Johana Maina Simon under Rule 83 of the Court of Appeal Rules, 2010, seeking an order that the respondents' notice of appeal lodged on 22nd May 2009 be deemed withdrawn. The respondents, who lost before Makhandia, J. in Nyeri High Court Civil Case No. 164 of 2001 (judgment delivered 11th May 2009), had lodged a notice of appeal but never filed the record of appeal. Their counsel argued that Rule 83 applied only where the intended appellant was dead and that the appeal was arguable. The court rejected that reading, holding on the plain text of Rule 83 that it governs any intended appellant who fails to institute an appeal within the appointed time under Rule 82(1), namely sixty days from lodgment of the notice, excluding certified preparation time. Although proceedings were availed on 24th March 2010, no memorandum or record of appeal followed, and the respondents' attempt to blame their former advocates failed because they showed no personal efforts and gave no reason for not instructing other counsel. No application for extension of time had been made. The court allowed the application, deemed the notice of appeal withdrawn, and awarded the applicants the costs of the application. The underlying High Court judgment was not itself under review in this ruling.

Key legal issues

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01

Scope of Rule 83 of the Court of Appeal Rules, 2010

Holding

Rule 83 applies to any intended appellant, living or dead, who fails to institute an appeal within the appointed time, contrary to the respondents' counsel's submission that it was confined to deceased appellants

Reasoning

The court set out the text of Rule 83 and rejected counsel's argument that the rule contemplated only the death of an intended appellant. The rule operates where an intended appellant who lodged a notice of appeal fails to institute the appeal within the appointed time, entitling the court, on its own motion or on application, to deem the notice withdrawn and award costs to those served.

p. 2
02

Whether the respondents' notice of appeal should be deemed withdrawn

Holding

The respondents did not file the memorandum/record of appeal within the timelines in Rule 82(1) and (2), had no plausible explanation, and made no application for extension of time; the notice of appeal was therefore deemed withdrawn

Reasoning

The notice of appeal was lodged on 22nd May 2009 and proceedings were availed on 24th March 2010, yet the application was brought on 29th March 2011 with no record of appeal filed. Blame on former advocates was rejected because the respondents showed no personal efforts and gave no reason for not instructing other counsel earlier. Without an extension-of-time application, the default stood.

p. 2

Legal principles established

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  • Rule 83 of the Court of Appeal Rules applies to any intended appellant who lodges a notice of appeal but fails to institute the appeal within the appointed time; it is not confined to deceased intended appellants, and a party in default is liable for costs
  • A party who has lodged a notice of appeal and fails to institute an appeal within the appointed time is deemed to have withdrawn the notice, and the court may so order on its own motion or on application
  • Blaming a former advocate for failure to file an appeal within time does not excuse the delay where the party has not shown its own efforts or explained why it did not instruct other counsel

Court orders

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  1. 1.The respondents' notice of appeal lodged on 22nd May 2009 in HCCA No. 164 of 2001 is deemed to have been withdrawn
  2. 2.The applicants' notice of motion dated 29th March 2011 is allowed
  3. 3.Costs of the application awarded to the applicants

Authorities

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Legislation

  • Court of Appeal RulesRule 83
  • Court of Appeal RulesRule 82(1)
  • Court of Appeal RulesRule 82(2)

Cases cited (1)

  • Muranda vs. Wambuko
    [2008] KLR 265
On appeal from
High Court of Kenya at Nyeri
H.C.C.C. No. 164 of 2001
Jurisdiction invoked
Rule 83 of the Court of Appeal Rules, 2010 (application to deem a notice of appeal withdrawn)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Amos Wamunyua & another v Nehemiah Ndumo Gitahi & another [2012] KECA 123 (KLR)", Case Analysis (2012). Civil Application No. 103 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/123/eng@2012-07-05

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