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Court of AppealOtherCivil Application No. NYR. 12 of 2015· [2015] KECA 526 (KLR)

Martin Kabaya v David Mungania Kiambi [2015] KECA 526 (KLR)

Court of Appeal of Kenya
1 July 2015
PWP. N. WakiRNR. NambuyePKP. O. Kiage
1,199 words in judgment
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The bottom line

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Kenya's Court of Appeal can only extend appeal deadlines — a High Court consent won't work, and unprosecuted appeals are deemed withdrawn after nine years of inaction.

What this practically means

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Executive summary

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This was an interlocutory application in the Court of Appeal at Nyeri under Rules 81 and 82 (amended at the hearing to invoke Rule 84) in which Martin Kabaya sought to strike out a notice of appeal dated 13th February 2006 filed by David Mungania Kiambi against a High Court judgment at Meru (Sitati J.) of 5th May 2005 awarding the applicant Ksh.1,638,090 plus costs and interest in HCCC No. 70 of 1999. The application was unopposed by affidavit. The court held that the High Court has no jurisdiction to enlarge time for filing an appeal to the Court of Appeal and that the consent recorded there extending time was an inefficacious nullity, so the notice of appeal was filed out of time. Even if valid, the record of appeal ought to have been filed within sixty days, by 16th April 2006, yet more than nine years later it remained unfiled with no explanation. However, the applicant's own striking-out application was also hopelessly out of time under Rule 84 and would not be granted, following Municipal Council of Mavoko v Aristocrats Concrete and Gichuki Kingara & Co. Advocates v Al Jalal Enterprises. The court instead invoked Rule 83 on its own motion and deemed the notice of appeal withdrawn, making no order as to costs given the applicant's own default. The ruling underscores the constitutional and statutory imperative of expeditious disposal of appeals and affirms the exclusive jurisdiction of the Court of Appeal over enlargement of time for filing appeals to it.

Key legal issues

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01

Validity of extension of time obtained from the High Court

Holding

The High Court lacked jurisdiction to enlarge time for filing an appeal to the Court of Appeal; the consent extension was a nullity and the notice of appeal was filed out of time.

Reasoning

The operative rules governing appeals to the Court of Appeal are the Court of Appeal Rules, and the power to enlarge time under Rule 4 resides exclusively in a single Judge of that Court. A party who applies to the High Court for such extension takes a futile path; any consent so recorded cannot cure the default, and the notice of appeal filed in reliance on it is out of time in the eyes of the Court of Appeal.

p. 2
02

Consequence of failure to institute the appeal within the appointed time

Holding

Under Rule 83, a party who lodges a notice of appeal but fails to institute the 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.

Reasoning

The record of appeal should have been filed within sixty days of the notice of appeal, by 16th April 2006 at the latest. More than nine years later it remained unfiled with no indication it would be filed. The court invoked Rule 83, which applies on the court's own motion, and deemed the notice of appeal withdrawn notwithstanding that the striking-out application itself was incompetent.

p. 3
03

Effect of the applicant's own late striking-out application

Holding

An application to strike out a notice of appeal must be brought within thirty days of service; the applicant's late application would not be granted, and he was denied costs for his own default.

Reasoning

The court noted that Rule 84, not Rules 81 and 82, was the proper rule, allowed the motion to be amended, but held the application hopelessly out of time. Following its earlier pronouncements on the mandatory nature of the thirty-day requirement, the court declined to grant the application as brought, instead acting under Rule 83 on its own motion and making no order as to costs.

p. 2

Legal principles established

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  • The High Court has no jurisdiction to enlarge time for filing appeals to the Court of Appeal; that power resides exclusively in the Court of Appeal under its own Rules
  • A consent entered into in the High Court purporting to extend time for filing a notice of appeal is an inefficacious nullity
  • Where a party who has lodged a notice of appeal fails to institute the appeal within the appointed time, the notice is deemed withdrawn and the party in default is liable for costs
  • An application to strike out under Rule 84 must be brought within thirty days of service of the notice of appeal; a late application is an afterthought and incompetent

Court orders

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  1. 1.The notice of appeal dated 13th February 2006 is deemed withdrawn under Rule 83 of the Court of Appeal Rules
  2. 2.No order as to costs, given the applicant's own default

Authorities

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Legislation

  • The Constitution of Kenyanot specified
  • Appellate Jurisdiction Actnot specified
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRules 81 and 82
  • Court of Appeal RulesRule 83
  • Court of Appeal RulesRule 84

Cases cited (2)

  • Municipal Council of Mavoko v Aristocrats Concrete Company Ltd
    [2015] eKLR
  • Gichuki Kingara & Co. Advocates v Al Jalal Enterprises Ltd & 2 Others
    Civil Application No. NAI 211 of 2012 (UR 156/2012) (Unreported)
On appeal from
High Court of Kenya at Meru
HCCC No. 70 of 1999
Jurisdiction invoked
Rules 81, 82, 83 and 84 of the Court of Appeal Rules (as amended to Rule 83 invoked suo motu)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Martin Kabaya v David Mungania Kiambi [2015] KECA 526 (KLR)", Case Analysis (2015). Civil Application No. NYR. 12 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/526/eng@2015-07-01

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