Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application No. 37 of 2017· [2018] KECA 94 (KLR)

Fred Miriga Alcop Limited & another v Fred Immanuel Miriga [2018] KECA 94 (KLR)

Court of Appeal
6 December 2018
639 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

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Appeal declared an abandoned appeal dead: if you don't file the record within 60 days, your notice of appeal is deemed withdrawn.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

#
This was an unopposed interlocutory application before the Court of Appeal at Malindi (Visram, Karanja and Koome, JJ.A) under Rules 42, 77, 83 and 84 of the Court of Appeal Rules, seeking the striking out or deemed withdrawal of a Notice of Appeal. The respondent, Fred Immanuel Miriga, had lodged a Notice of Appeal on 16th April 2012 against the ruling of Kasango, J in Mombasa HC Case No. 14 of 1999 delivered on 29th March 2012, but thereafter took no further steps: he neither applied for the proceedings nor filed a record of appeal within the sixty days prescribed by Rule 82(1), which lapsed on 25th June 2012. The applicants, who were among five respondents in the intended appeal, filed the motion on 14th June 2017 through their advocate, Shamsa Gathini Ibrahim. The court restated that under Rule 83 it has the mandate, either suo motu or on application by a party, to order that a Notice of Appeal be deemed withdrawn where an appeal has not been filed within the appointed time. Allowing the application, the court deemed the Notice of Appeal dated 12th April 2012 and lodged on 16th April 2012 withdrawn, and declined to award costs because the application was unopposed. The intended appeal therefore never proceeded; the underlying High Court ruling of 29th March 2012 stands unaffected by any appellate decision.

Key legal issues

#
01

Deeming a Notice of Appeal withdrawn for non-filing of the record of appeal within time

Holding

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on 25th June 2012 with no record of appeal filed and no explanation, so under Rule 83 the Notice of Appeal was deemed withdrawn.

Reasoning

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.

p. 2
02

Costs on an unopposed interlocutory application

Holding

The court declined to award costs because the application was unopposed.

Reasoning

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.

p. 2

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. 1.The application dated 14th June 2017 is allowed
  2. 2.The Notice of Appeal dated 12th April 2012 and lodged on 16th April 2012 is deemed withdrawn
  3. 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.