Peter Kibe Wangai v Paul Temu Nderemo & Camp Garnatula Catholic
The bottom line
#Kenya's Court of Appeal struck out a stalled appeal, confirming that filing a notice of appeal is meaningless unless you actually file the appeal within sixty days.
What this practically means
#Executive summary
#Key legal issues
#Failure to institute appeal within 60 days under Rule 82
The respondents were required to file the appeal by 3rd December, 2010; having neither filed it nor explained the delay, the notice of appeal was deemed withdrawn under Rule 83.
Rule 82 requires an appeal to be filed within sixty days of lodging the notice, with the proviso excluding only time certified for preparing proceedings. No request for proceedings was made, so time ran from 1st October, 2010. The delay of roughly three years was unexplained, and the respondents unfairly benefited from a stay of execution pending an appeal never filed.
Arguable appeal as answer to inordinate delay
A contention that the appeal is arguable does not suffice as a reasonable explanation for failure to institute the appeal in time.
The court held that arguability goes to the merits of an intended appeal, not to the default in instituting it. Where a party has simply done nothing for years while enjoying stay orders, the interest of justice favours striking out the notice under Rule 83, following Mohammed Sheikh Abubakar v Zacharius Mweri Baya.
Legal principles established
#- A party who lodges a notice of appeal but fails to institute the appeal within the appointed time is deemed to have withdrawn the notice, and the court may so declare on application, with the defaulting party liable for costs.
Court orders
#- 1.The respondents' Notice of Appeal dated 1st October, 2010 is deemed withdrawn due to failure to institute the appeal in accordance with the Rules
- 2.The application is allowed with costs to the applicant
- On appeal from
- High Court of Kenya at Nyeri
- H.C.C.A No. 18B of 2009
- Jurisdiction invoked
- Rule 83 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Kibe Wangai v Paul Temu Nderemo & Camp Garnatula Catholic", Case Analysis (2015). Civil Application No. 29 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/998/eng@2015-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.