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Court of AppealPartially AllowedCivil Application No. NYR. 25 of 2014· [2014] KECA 165 (KLR)

Alexander Munene .r. Nguu & 2 others v Njue M’tetu & 3 others

Court of Appeal of Kenya
17 December 2014
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
1,065 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a notice of appeal dies automatically if the full appeal isn't filed within 60 days — no excuses, no extension.

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 (Visram, Koome and Odek, JJ.A) on an application by the applicants, who had succeeded before the High Court at Kerugoya (Olao, J.) in H.C. ELC No. 7 of 2013, to strike out or deem withdrawn a Notice of Appeal lodged by the 1st to 3rd respondents on 16th October 2013 against the ruling of 1st October 2013 declining to extend time for filing a defence. The applicants invoked Rules 82(1) & (2) and 83 of the Court of Appeal Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, complaining that more than sixty days had elapsed without the respondents instituting an appeal. The respondents filed no replying affidavit and did not appear at the hearing. The court set out the text of Rule 82(1), computed the deadline as 16th December 2013, noted the absence of any explanation for the delay, and invoked Rule 83, following its earlier decision in Mohammed Sheikh Abubakar v Zacharius Mweri Baya. The court held the respondents' Notice of Appeal deemed withdrawn for failure to institute the appeal in accordance with the Rules, allowed the application, and awarded costs to the applicants. The High Court's substantive ruling was not itself disturbed; the effect is that the intended appeal cannot proceed. The decision binds subordinate courts and the High Court on the automatic consequence of Rule 83 where an appeal is not instituted within the appointed time.

Key legal issues

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01

Consequence of failure to institute an appeal within the time prescribed by Rule 82(1)

Holding

Failure to lodge the memorandum and record of appeal, prescribed fee and security within 60 days of the Notice of Appeal results in the notice being deemed withdrawn under Rule 83, even without a response from the defaulting party.

Reasoning

The respondents filed the Notice of Appeal on 16th October 2013 and were required to institute the appeal by 16th December 2013. No appeal was filed and no explanation for the delay was tendered; the respondents filed no replying affidavit and did not attend the hearing. The court therefore invoked Rule 83 and, following Mohammed Sheikh Abubakar v Zacharius Mweri Baya, deemed the notice withdrawn and awarded costs to the applicants.

p. 3

Legal principles established

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  • Where a party who has lodged a notice of appeal fails to institute the appeal within the appointed time (60 days under Rule 82(1)), the notice of appeal is deemed withdrawn and the Court may so order on its own motion or on application, with the defaulting party liable to pay costs.

Court orders

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  1. 1.The respondents' Notice of Appeal dated 16th October, 2013 is deemed to have been withdrawn under Rule 83 of the Court of Appeal Rules for failure to institute the appeal in accordance with the Rules of the Court
  2. 2.The application is allowed with costs to the applicants
On appeal from
High Court of Kenya at Kerugoya
H.C. ELC No. 7 of 2013
Jurisdiction invoked
Rules 82(1) & (2) and 83 of the Court of Appeal Rules; Sections 1A, 1B & 3A of the Civil Procedure 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, "Alexander Munene .r. Nguu & 2 others v Njue M’tetu & 3 others", Case Analysis (2014). Civil Application No. NYR. 25 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/165/eng@2014-12-17

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