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Court of AppealAllowedCivil Application No. NAI 247 of 2010· [2014] KECA 622 (KLR)

Mbugua & Mbugua, Advocates v Kenindia Assurance Company Limited [2014] KECA 622 (KLR)

Court of Appeal
4 April 2014
GKG. B. M. KariukiDMD. K. MusingaPKP. O. Kiage
708 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 if you don't file the full appeal within 60 days — and you'll 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 Nairobi (G. B. M. Kariuki, Musinga and Kiage, JJ.A.) on a notice of motion dated 6 October 2010 by Mbugua & Mbugua, Advocates, seeking the striking out of a notice of appeal lodged by Kenindia Assurance Company Limited against a ruling of the High Court (Mwera J.) delivered on 18 February 2010 in Miscellaneous Application No. 506 of 2005. The applicant complained that the respondent, having served its notice of appeal, took no steps to lodge the record of appeal and failed to comply with rule 82 by not applying for the proceedings within 30 days of the ruling. The respondent, though served, filed no replying affidavit and its counsel left the matter to the Court, leaving the applicant's averments uncontroverted. The Court held that under rules 75, 77(1) and 82, the respondent was obliged to institute the appeal by lodging a record of appeal within 60 days of the notice of appeal, and that rule 83 deems a party who fails to do so to have withdrawn the notice of appeal, with the Court empowered to so order on application or of its own motion and with the defaulting party liable for costs. The Court allowed the application, deemed the notice of appeal abandoned, and ordered the respondent to pay the applicant's costs. The decision affirms the binding effect of rule 83 on parties who allow notices of appeal to lapse without instituting appeals.

Key legal issues

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01

Effect of failure to lodge a record of appeal within 60 days of the notice of appeal

Holding

The notice of appeal is deemed withdrawn under rule 83 and may be struck out on application, with costs against the defaulting party.

Reasoning

Having given notice of appeal under rule 75 and served it under rule 77(1), the respondent was enjoined to lodge a record of appeal within 60 days comprising the documents enumerated in rule 82(1)(a) to (d). It did not do so. The supporting affidavit averments went uncontroverted as the respondent filed no replying affidavit and left the matter to the Court. Default was therefore established and rule 83 deems the notice withdrawn, entitling the applicant to an order and costs.

p. 2

Legal principles established

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  • A party who lodges a notice of appeal but fails to institute the appeal within 60 days is deemed to have withdrawn the notice of appeal, and the Court may so declare on application or on its own motion, with the party in default liable for costs.

Court orders

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  1. 1.The notice of appeal dated 24.2.2010 served on the applicant is deemed to have been abandoned
  2. 2.The application dated 28.10.2010 is allowed
  3. 3.The respondent shall pay the costs of the application

Authorities

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Legislation

  • Court of Appeal Rulesrule 75
  • Court of Appeal Rulesrule 77(1)
  • Court of Appeal Rulesrule 82(1)(a)-(d)
  • Court of Appeal Rulesrule 83
On appeal from
High Court of Kenya at Nairobi
Miscellaneous Application No. 506 of 2005
Jurisdiction invoked
Rule 83 of the Court of Appeal Rules (application for orders where a notice of appeal is deemed withdrawn)

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, "Mbugua & Mbugua, Advocates v Kenindia Assurance Company Limited [2014] KECA 622 (KLR)", Case Analysis (2014). Civil Application No. NAI 247 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/622/eng@2014-04-04

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