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Court of AppealAllowedCivil Application No. NAI. 301 of 2014· [2015] KECA 576 (KLR)

Bivac International v Chieni Enterprises Limited & another [2015] KECA 576 (KLR)

Court of Appeal
3 July 2015
EGE. M. GithinjiAVAlnashir VisramPhilomena Mbete MwiluP. M. Mwilu
949 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a party who files a notice of appeal but then does nothing risks having it formally declared withdrawn.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 (Githinji, Visram and Mwilu, JJ.A) delivered on 3rd July 2015 in Civil Application No. NAI. 301 of 2014. Bivac International, the successful party in H.C.C.C. No. 1947 of 1999 in the High Court, moved the Court under Rule 83 of the Court of Appeal Rules seeking an order that the notice of appeal filed by the unsuccessful party, Chieni Enterprises Limited, on 15th November 2010 be deemed withdrawn. The applicant showed that although the 1st respondent had applied for typed and certified proceedings and had been notified on 23rd July 2013 that they were ready for collection, it had neither filed a record of appeal within the 60 days prescribed by Rule 82(2) nor sought an extension of time, and appeared to have lost interest in the appeal. The 1st respondent, though served with the hearing notice on 27th May 2015, did not attend and filed no response; the 2nd respondent, the Attorney General for the Minister for Finance, supported the motion. The Court applied its earlier decision in Quickcubes E.A. Ltd v Kenya Railways Corporation, observing that Rule 83 confers an unfettered discretion to deem an appeal withdrawn where an appellant goes to slumber, and that the rule exists to stem abuse of court process and promote case-management efficiency. The Court found the dormant notice occupied unearned registry space and denied the applicant the fruits of its judgment. It allowed the motion, deemed the notice of appeal withdrawn, and awarded the costs of the motion to the applicant and the 2nd respondent.

Key legal issues

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01

Whether a notice of appeal that has not been prosecuted within the prescribed 60-day period for filing the record of appeal should be deemed withdrawn under Rule 83

Holding

Yes. The 1st respondent, having filed a notice of appeal on 15th November 2010 and done nothing further to file the record of appeal within the 60 days prescribed by Rule 82(2), fell squarely within Rule 83 and its notice of appeal was deemed withdrawn, with costs to the applicant and the 2nd respondent.

Reasoning

Rule 83 provides that a party who lodges a notice of appeal but fails to institute an appeal within the appointed time is deemed to have withdrawn it, and the court may so order on its own motion or on application by any party, with the defaulting party liable for costs. The record showed the 1st respondent applied for typed proceedings but, despite notice in July 2013 that they were ready, never filed the record of appeal or sought extension of time. The court applied its earlier pronouncement in Quickcubes E.A. Ltd v Kenya Railways Corporation, holding the rule stems abuse of process and promotes case-management efficiency. The dormant notice clogged the registry and denied the applicant the fruits of its judgment.

p. 2

Legal principles established

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  • Rule 83 confers an unfettered discretion on the Court to deem an appeal withdrawn where a party files a notice of appeal and fails to institute the appeal within the appointed time, and the court may invoke the rule suo motu.

Court orders

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  1. 1.The notice of appeal dated and filed on 15th November 2010 by Chieni Enterprises Limited is deemed as withdrawn
  2. 2.The applicant and the 2nd respondent shall have the costs of the motion

Authorities

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Legislation

  • Court of Appeal RulesRule 83
  • Court of Appeal RulesRule 82(2)

Cases cited (1)

  • Quickcubes E.A. Ltd v Kenya Railways Corporation
    [2004] e KLR
On appeal from
High Court
H.C.C.C. No. 1947 of 1999
Jurisdiction invoked
Rule 83 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, "Bivac International v Chieni Enterprises Limited & another [2015] KECA 576 (KLR)", Case Analysis (2015). Civil Application No. NAI. 301 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/576/eng@2015-07-03

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