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Court of AppealAllowedCivil Application No. NAI. 215 of 2010 (UR.12/2010)· [2012] KECA 221 (KLR)

Kenya Agricultural Research Institute (KARI) v Carol Construction CO. Ltd [2012] KECA 221 (KLR)

Court of Appeal of Kenya
24 February 2012
EOE.O. O'KubasuRNR.N. NambuyeHOH.M. Okwengu
486 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 filed five years earlier because the appealing party never filed the record of appeal, proving lost interest.

What this practically means

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Executive summary

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This is a single-judgment-of-the-court ruling of the Court of Appeal at Nakuru (O'Kubasu, Nambuye and Okwengu, JJ.A.) delivered on 24th February 2012 in a notice of motion brought by Kenya Agricultural Research Institute (KARI) under Rules 42 and 80 of the Court of Appeal Rules, seeking to strike out a notice of appeal lodged by Carol Construction Co. Ltd. The notice of appeal, dated 5th July, 2004, was lodged on 7th July, 2005 against a ruling of the High Court at Nakuru (Kimaru, J) dated 30th June, 2005 in H.C. Misc. Appl. No. 99 of 2004. KARI argued that an essential step in the proceedings had not been taken because no record of appeal had been filed five years after lodgment of the notice; that the delay showed the respondent had lost interest; and that the respondent had filed a separate appeal (Civil Appeal No. 33 of 2005, Nakuru) arising from the same matter. Counsel relied on Rule 82(1), which requires an appeal to be instituted within sixty days of lodgment of the notice. The respondent, though served, did not appear and the application was unopposed. The Court, noting the matter had remained dormant since lodgment until KARI's application of 13th September 2010, held there could be no doubt the respondent had lost interest in its appeal. It allowed the application and struck out the notice of appeal with costs to KARI. The ruling binds subordinate courts and the High Court on the consequence of failing to institute an appeal within the Rule 82 timeframe where the delay evidences abandonment.

Key legal issues

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01

Striking out a notice of appeal for failure to file the record of appeal within the time prescribed by Rule 82

Holding

The Court struck out the notice of appeal because no record of appeal had been filed within 60 days of lodgment and the matter had remained dormant for years, evidencing loss of interest.

Reasoning

Rule 82(1) requires an appeal to be instituted by lodging the record in the appropriate registry within sixty days of lodgment of the notice of appeal. Here the notice was lodged on 7th July, 2005, yet by the time of the application in September 2010 no record had been filed, some five years later. The applicant also pointed to a separate appeal (Civil Appeal No. 33 of 2005, Nakuru) arising from the same matter. The Court concluded the respondent had abandoned the intended appeal and allowed the application without opposition from the respondent, who did not appear despite service.

p. 2

Legal principles established

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  • Where a party lodges a notice of appeal but fails to institute the appeal by lodging the record of appeal within the 60-day period prescribed by Rule 82 of the Court of Appeal Rules and takes no further steps, the notice of appeal is liable to be struck out on the ground that an essential step in the proceedings has not been taken and the party has lost interest in the appeal.

Court orders

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  1. 1.The notice of appeal dated 5th July, 2004 and lodged on 7th July, 2005 is struck out with costs to the applicant

Authorities

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Legislation

  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 80
  • Court of Appeal RulesRule 82(1)
  • Court of Appeal RulesRule 115
On appeal from
High Court of Kenya at Nakuru
H.C. Misc. Appl. No. 99 of 2004
Jurisdiction invoked
Rules 42 and 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, "Kenya Agricultural Research Institute (KARI) v Carol Construction CO. Ltd [2012] KECA 221 (KLR)", Case Analysis (2012). Civil Application No. NAI. 215 of 2010 (UR.12/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/221/eng@2012-02-24

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