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Court of AppealPartially AllowedCivil Application No. NAI 144 of 2013 (UR 97/2013)· [2013] KECA 131 (KLR)

Nyamodi Ochieng Nyamogo v Telkom Kenya Limited [2013] KECA 131 (KLR)

Court of Appeal of Kenya
29 November 2013
Philomena Mbete MwiluP. M. MwiluPKP. O. KiageKMK. M'inoti
1,164 words in judgment
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The bottom line

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The Court of Appeal ruled that Telkom Kenya lost its chance to appeal by missing filing deadlines, and its notice of appeal was declared withdrawn.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Mwilu, Kiage and M'inoti, JJ.A) on a motion under Rule 83 of the Court of Appeal Rules by Nyamodi Ochieng Nyamogo seeking an order that Telkom Kenya Limited's notice of appeal dated 5th July, 2012 be deemed withdrawn. The notice of appeal was lodged against the judgment of Nambuye, J in HCCC No. 1736 of 1993 delivered on 22nd June, 2012. The applicant deponed that the respondent never filed the appeal within the 60 days required by Rule 82(1), never applied for certified copies of proceedings within 30 days so as to earn the benefit of the proviso to Rule 82, and had already failed in attempts to extend time: the High Court declined jurisdiction to extend time under Rule 82(2), and Karanja, JA held that Rule 82 imposes no time limit for applying for proceedings, making such an application misconceived. The respondent filed no replying affidavit and was unrepresented at the hearing despite service. The court applied its own decision in Benedict Mwazighe v Gasper Walele, holding that a party who fails to comply with the proviso to Rule 82 must file the appeal within 60 days of the notice of appeal, and that failure leaves the notice of appeal serving no useful purpose. It also referred to section 3A of the Appellate Jurisdiction Act and the caution in Mradura Suresh Kantaria that the overriding objective is not a panacea. The application was allowed; the notice of appeal was deemed withdrawn and the applicant awarded costs. The consequential reliefs vacating the stay orders and releasing the decretal amount were not granted in the final orders.

Key legal issues

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01

Effect of failure to file an appeal within the 60-day period prescribed by Rule 82(1)

Holding

Where no appeal is filed within 60 days of the notice of appeal and the party cannot invoke the proviso, the notice of appeal is liable to be deemed withdrawn under Rule 83

Reasoning

Rule 82(1) requires an appeal to be filed within 60 days of the notice of appeal. The proviso excludes time certified by the registrar only where the party applied in writing for certified copies within 30 days and copied the opponent. The respondent did neither, and the High Court correctly held it lacked jurisdiction to extend time under Rule 82(2). Following the Mwazighe decision, the notice of appeal no longer served any purpose. The respondent filed no replying affidavit and offered no explanation.

p. 3
02

Scope of the overriding objective under section 3A of the Appellate Jurisdiction Act

Holding

The overriding objective does not rescue a party who has laid no proper foundation for its application; its benefits must be judicially ascertained

Reasoning

The court acknowledged section 3A and its aims of just, expeditious, proportionate and affordable resolution of appeals, but adopted the Kantaria caution that the overriding objective is not a panacea for all ills and that a foundation for its application must be properly laid. In the absence of any response or explanation from the respondent, the overriding objective could not save the intended appeal.

p. 2

Legal principles established

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  • A party who fails to apply for certified copies of proceedings within 30 days of the judgment cannot invoke the proviso to Rule 82 and must file the appeal within 60 days of lodging the notice of appeal; failing which the notice of appeal may be deemed withdrawn

Court orders

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  1. 1.The respondent's notice of appeal dated 5th July, 2012 is deemed to have been withdrawn
  2. 2.The applicant shall have costs of the application

Authorities

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Legislation

  • Court of Appeal RulesRule 83
  • Court of Appeal RulesRule 82(1)
  • Court of Appeal RulesRule 82(2)
  • Court of Appeal RulesProviso to Rule 82
  • Appellate Jurisdiction ActSection 3A

Cases cited (2)

  • Benedict Mwazighe & Another v Gasper Walele & 2 Others
    MSA Civil Application No. NAI 255 of 2010
  • Mradura Suresh Kantaria v Suresh Nanalal Kantaria
    CA No. 277 of 2005
On appeal from
High Court of Kenya
HCCC No. 1736 of 1993
Jurisdiction invoked
Rule 83 of the Court of Appeal Rules, read with section 3A of the Appellate Jurisdiction Act

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, "Nyamodi Ochieng Nyamogo v Telkom Kenya Limited [2013] KECA 131 (KLR)", Case Analysis (2013). Civil Application No. NAI 144 of 2013 (UR 97/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/131/eng@2013-11-29

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