Fred Miriga Alcop Limited & another v Fred Immanuel Miriga [2018] KECA 94 (KLR)
The bottom line
#The Court of Appeal declared an abandoned appeal dead: if you don't file the record within 60 days, your notice of appeal is deemed withdrawn.
What this practically means
#Executive summary
#Key legal issues
#Deeming a Notice of Appeal withdrawn for non-filing of the record of appeal within time
The respondent lodged a Notice of Appeal on 16th April 2012 but took no further steps; the sixty days prescribed by Rule 82(1) lapsed on 25th June 2012 with no record of appeal filed and no explanation, so under Rule 83 the Notice of Appeal was deemed withdrawn.
Rule 82(1) requires lodgment of a memorandum of appeal, record of appeal, prescribed fee and security within sixty days of the notice of appeal. The respondent never applied for proceedings, served no letter bespeaking proceedings, and filed no record. The application under Rules 42, 77, 83 and 84 was served and unopposed. The court therefore exercised its Rule 83 mandate to deem the notice withdrawn.
Costs on an unopposed interlocutory application
The court declined to award costs because the application was unopposed.
Although the applicants sought the striking out of the Notice of Appeal, the court in its discretion awarded no costs, taking into account that the respondent did not oppose the application.
Legal principles established
#- Where a party fails to file an appeal within the sixty days appointed under Rule 82(1), the Court of Appeal may, suo motu or on application, order that the Notice of Appeal be deemed withdrawn under Rule 83.
Court orders
#- 1.The application dated 14th June 2017 is allowed
- 2.The Notice of Appeal dated 12th April 2012 and lodged on 16th April 2012 is deemed withdrawn
- 3.No order as to costs, the application having been unopposed
- On appeal from
- High Court of Kenya at Mombasa
- Mombasa HC Case No. 14 of 1999
- Jurisdiction invoked
- Rules 42, 77, 83 and 84 of the Court of Appeal Rules (application to strike out / deem withdrawn a Notice of Appeal under Rule 83)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fred Miriga Alcop Limited & another v Fred Immanuel Miriga [2018] KECA 94 (KLR)", Case Analysis (2018). Civil Application No. 37 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/94/eng@2018-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.