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Court of AppealPartially AllowedCivil Application No. 36 of 2015· [2016] KECA 168 (KLR)

Kidheka Mutisya Ngata v Emmanuel Ngande Nyoka & 3 others [2016] KECA 168 (KLR)

Court of Appeal
26 February 2016
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
1,924 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that if you don't file your appeal on time and serve the right documents, your appeal dies automatically.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Malindi, dated and delivered at Mombasa on 26th February 2016, on an application under Rules 82(1) and 83 of the Court of Appeal Rules seeking that the respondent's notice of appeal be deemed withdrawn. The underlying dispute concerned Plot No. Kilifi/Kijipwa/173: the applicant had been ordered to specifically perform an agreement, but the Environment and Land Court at Malindi (Angote, J.) allowed his appeal on 19th December 2013, set aside that decision and ordered rectification of the register by cancelling subdivisions and restoring the original title to the applicant. The respondent lodged a notice of appeal and obtained stay of execution, but failed to institute the appeal. The applicant contended the respondent had taken no essential steps: no decree extracted, no deposit for typing, and no proof that the letter bespeaking proceedings of 14th February 2014 was served. The respondent blamed the registry's delay and signalled an intention to seek leave to appeal out of time. The court held that under Rule 82(2), an appellant cannot rely on the proviso to Rule 82(1) excluding time for preparation of proceedings unless the application for proceedings was made in writing within 30 days and served on the respondent. No proof of service existed, so the respondent was ineligible for any exclusion of time; the 60-day period lapsed and the notice of appeal was deemed withdrawn under Rule 83. The court reiterated, citing a string of its own decisions, that non-compliance with Rule 82 cannot be cured by the overriding objective. The application was allowed with costs to the applicant.

Key legal issues

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01

Entitlement to exclusion of time under the proviso to Rule 82(1)

Holding

The respondent was disentitled to exclusion of time because the letter bespeaking proceedings was never served on the applicant, as required by Rule 82(2).

Reasoning

Rule 82 requires the appeal to be lodged within sixty days of the notice of appeal. Time for preparation of typed proceedings is excluded only if two conditions are met: the application for proceedings is made in writing within 30 days of the decision, and a copy is served on the respondent. Although the respondent may have applied in writing within 30 days, no proof of service of the 14th February 2014 letter was tendered, so he could not benefit from the proviso or a certificate of delay.

p. 3
02

Consequence of failure to institute the appeal in time

Holding

The notice of appeal is deemed withdrawn under Rule 83 and the party in default is liable for costs.

Reasoning

Since the 60-day period lapsed and the respondent was ineligible to any exclusion of time in a certificate of delay, he defaulted in instituting the appeal. Rule 83 deems the notice of appeal withdrawn, whether on the court's own motion or on application by a party, and the defaulting party pays costs. The court endorsed its prior decisions holding that the overriding objective cannot be used to void prescribed time limits.

p. 3

Legal principles established

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  • An intended appellant cannot benefit from the proviso to Rule 82(1) excluding time for preparation of proceedings unless the application for proceedings was made in writing within 30 days and served on the respondent.
  • 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 of appeal under Rule 83.
  • Non-compliance with Rule 82 cannot be cured by invoking the overriding objective.

Court orders

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  1. 1.The respondent's notice of appeal lodged in the High Court on 16th January, 2014 is deemed withdrawn under Rule 83 of the Court of Appeal Rules
  2. 2.Costs of the application to the applicant

Authorities

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Legislation

  • Court of Appeal RulesRule 82(1)
  • Court of Appeal RulesRule 82(2)
  • Court of Appeal RulesRule 83
  • Court of Appeal RulesRule 115
  • Appellate Jurisdiction ActSections 3A and 3B

Cases cited (6)

  • Christine Wangari Munga v David Mwaura & Another
    CA No. 196 of 2013
  • Salama Beach Hotel Ltd v. Mario Rossi
    [2015] eKLR
  • Benedict Mwanzighe & Another v Gasper Walele & 2 Others
    CA No. 255 of 2010 (Mombasa)
  • Musyoka Mutie Makau v Peter Mutie Makau & Another
    C.A. No. NAI 303 of 2013
  • Development Bank of Kenya & Another v Francis Ndegwa T/A Murugu Holdings Ltd
    CA. No. 28 of 2013 (Nyeri)
  • Ramji Devji Vekaria v Joseph Oyula
On appeal from
Environment and Land Court at Malindi
E.L.C.C. No. 5 of 2009
Jurisdiction invoked
Rules 82(1) and 83 of the Court of Appeal Rules (Appellate Jurisdiction 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, "Kidheka Mutisya Ngata v Emmanuel Ngande Nyoka & 3 others [2016] KECA 168 (KLR)", Case Analysis (2016). Civil Application No. 36 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/168/eng@2016-02-26

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