Elizabeth Wanjiku Muchai v Standard Limited [2017] KECA 735 (KLR)
The bottom line
#The Court of Appeal struck out The Standard's dormant 2011 appeal against a Kshs 5.5 million defamation award because it never filed the appeal record or diligently pursued the case.
What this practically means
#Executive summary
#Key legal issues
#Competency of a Rule 84 strike-out application filed beyond the thirty-day proviso
The application was competent. The thirty-day restriction in the proviso to Rule 84 cannot apply where the ground for striking out is failure to institute the appeal by filing the record of appeal, since the intending appellant has at least sixty days under Rule 82; the applicant could not be penalised for not acting within thirty days when the respondent had at least sixty days to file the record.
The Court adopted its earlier reasoning in Lither Peter Muia & Another v Zuena Ngando Kababu, which drew on C.Y.O.O. v R.O.O. Holding such an application to the thirty-day proviso would effectively shorten the period allowed under Rule 82 for instituting an appeal. The proviso is intended for situations where no appeal lies, the notice was lodged or served out of time, leave was not obtained, or a precedent step was not taken - not for delay in filing the record. The authority relied on by the respondent was therefore distinguishable, and the application could not be struck out as incompetent.
Whether the respondent took reasonable steps to file the record of appeal
The respondent had not taken any reasonable steps. Despite filing the notice of appeal in 2011 and complying with stay conditions, no record of appeal had been filed, and the respondent failed even to file a supplementary affidavit on steps taken as required by a consent order recorded nearly two years earlier.
Rule 82 requires the record of appeal to be filed within sixty days, with time taken to prepare proceedings excluded. However, requesting proceedings does not entitle a party to sit back; the court's duty to avail proceedings is matched by the party's duty of diligent follow-up. The consent order requiring a supplementary affidavit on steps taken underscored this duty, and the respondent's failure to file one for almost two years demonstrated lack of diligence, making the notice of appeal liable to be struck out.
Legal principles established
#- The proviso to Rule 84, barring strike-out applications filed more than thirty days after service of a notice of appeal, does not apply where the ground relied on is failure to file the record of appeal within the period prescribed under Rule 82; such an application cannot be deemed incompetent for being filed within thirty days.
- A party intending to appeal must diligently follow up on the preparation and delivery of certified proceedings; merely writing to request proceedings does not amount to taking reasonable steps towards filing the record of appeal.
Court orders
#- 1.The application is allowed with costs to the applicant
- 2.The Notice of Appeal dated 27th January, 2011 and filed before the Court on 4th February, 2011 is struck out
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 2148 of 1997
- Jurisdiction invoked
- Rule 84 of the Court of Appeal Rules (application to strike out a notice of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Esther Anyango Ochieng v Transmara Sugar Company[2020] KEHC 8404 (KLR)31 Jan 2020
- Hon. Justus Aloo Ogeka & 6 Others v Kenya Union of Commercial Food and Allied Workers[2018] KECA 872 (KLR)26 Jan 2018
- Mae Properties Limited v Kibe & another (Civil Appeal 201 of 2016) [2017] KECA 238 (KLR)[2017] KECA 238 (KLR)19 Oct 2017
Cite this brief
#Cite this brief
Caselaw, "Elizabeth Wanjiku Muchai v Standard Limited [2017] KECA 735 (KLR)", Case Analysis (2017). Civil Application No. 297 of 2014 (UR 221/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/735/eng@2017-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.