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Court of AppealStruck OutCivil Application No. NAI 100 of 2013 (with Civil Applications Nos. 149 of 2013; Nai 150 of 2013; Nai 151 of 2013; Nai 152 of 2013)· [2016] KECA 214 (KLR)

Nairobi Bottlers Limited v Antony Surre Lukeya [2016] KECA 214 (KLR)

Court of Appeal
14 October 2016
EGE. M. GithinjiGKG. B. M. KariukiPhilomena Mbete MwiluP. M. Mwilu
1,203 words in judgment
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The bottom line

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A notice of appeal left dormant for over a year in Kenya automatically dies under Court of Appeal rules, and you cannot strike out what no longer exists.

What this practically means

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Executive summary

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Nairobi Bottlers Limited, the defendant in five consolidated suits (H.C.C.C. Nos. 1136, 1138, 1139, 1140 and 1141 of 2000) dismissed by the High Court (Ransley, J) on 7th February 2005, filed five notices of motion seeking to strike out the notices of appeal lodged by the five plaintiffs on 21st February 2005, on the basis that no appeals had been instituted in the intervening eleven years. The motions invoked rules 42(1) & (2), 81 and 83 of the Court of Appeal Rules. The respondents opposed, contending the motions were themselves defective because the notices of appeal were deemed withdrawn under rule 83. The Court of Appeal (Githinji, G.B.M. Kariuki and Mwilu, JJ.A) held that by effluxion of time and operation of rule 83, each notice of appeal was deemed withdrawn since no appeal was lodged within the 60 days prescribed by rule 82(1). Consequently, no notice of appeal was in existence capable of being struck out, rendering the motions misplaced and incompetent. The Court further observed that rule 83 was the wrong rule for striking out; rule 84 was the relevant rule, but even that would not have aided the applicant because its proviso requires such applications to be made within 30 days of service of the notice of appeal or record of appeal, a period long past. The Court struck out the five notices of motion as incompetent, awarded costs to the respondents, and declared the notices of appeal deemed withdrawn, bringing closure to the intended appeals.

Key legal issues

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01

Effect of rule 83 on a stale notice of appeal

Holding

A notice of appeal in respect of which no appeal is instituted within the appointed time is deemed withdrawn by operation of rule 83 and no longer exists; it cannot be struck out because there is nothing in being to strike out.

Reasoning

Rule 83 deems a notice of appeal withdrawn where the party fails to institute the appeal within the appointed time. That deemed withdrawal occurs by effluxion of time and by operation of the Rules, not by any order the court must make. Once so deemed withdrawn, the notice of appeal does not exist, and motions seeking its striking out are misplaced and incompetent.

p. 2
02

Wrong rule invoked and the 30-day limit in rule 84

Holding

Rule 83 is not the appropriate rule for striking out a notice of appeal; rule 84 is. But even under rule 84, the application would fail because the proviso requires such applications to be brought within 30 days of service of the notice of appeal or record of appeal.

Reasoning

The motions were predicated on rules 42(1) & (2), 81 and 83, but rule 81 concerns withdrawal by the party lodging the notice and rule 83 concerns deemed withdrawal. The correct rule for striking out is rule 84. Its proviso imposes a 30-day window from service of the notice or record of appeal; beyond that period the right to strike out is lost or waived. The applicant brought the motions many years after service, so even reliance on rule 84 could not save them.

p. 2

Legal principles established

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  • A notice of appeal under which no appeal is instituted within the appointed time is deemed withdrawn under rule 83, and ceases to exist as a record capable of being struck out.
  • An application to strike out a notice of appeal or record of appeal under rule 84 must be made within 30 days of service of the notice or record, failing which the right to strike out is lost or waived.

Court orders

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  1. 1.The five notices of motion are struck out as incompetent
  2. 2.Costs of the motions are given to the respondents
  3. 3.The notices of appeal are declared deemed to have been withdrawn under rule 83, bringing closure to the erstwhile intended appeals

Authorities

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Legislation

  • Court of Appeal RulesRule 42(1) & (2)
  • Court of Appeal RulesRule 75
  • Court of Appeal RulesRule 81
  • Court of Appeal RulesRule 82(1)
  • Court of Appeal RulesRule 83
  • Court of Appeal RulesRule 84
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1136 of 2000 (consolidated with Nos. 1138/2000, 1139/2000, 1140/2000 and 1141/2000)
Jurisdiction invoked
Court of Appeal Rules (rules 42(1) & (2), 75, 81, 82(1), 83 and 84), on the Court's original incidental jurisdiction over notices of appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Nairobi Bottlers Limited v Antony Surre Lukeya [2016] KECA 214 (KLR)", Case Analysis (2016). Civil Application No. NAI 100 of 2013 (with Civil Applications Nos. 149 of 2013; Nai 150 of 2013; Nai 151 of 2013; Nai 152 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/214/eng@2016-10-14

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