Charles K. Wanguhu & another v Cosmas Kiti & 46 others [2018] KECA 98 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal left dormant for over two years, warning that missing appeal deadlines without explanation can kill your case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of appeal filed on 9th March, 2015 should be deemed withdrawn under Rule 83 of the Court of Appeal Rules for want of prosecution
- 2.Whether the respondents could rely on the proviso to Rule 82(1) of the Court of Appeal Rules to excuse the delay in instituting the appeal
Key legal issues
#Whether a notice of appeal should be deemed withdrawn under Rule 83 after more than two years of inaction
Yes. The respondents filed a notice of appeal on 9th March, 2015 but took no steps for over two years and offered no explanation; the notice was therefore deemed withdrawn.
The Court found that the respondents went to slumber after filing the notice of appeal, made no application for extension of time, and never served a letter bespeaking proceedings. The affidavit in response relied only on information from advocates about proceedings becoming ready. With no explanation for the delay and no compliance with the Rules, the Court allowed the application under Rule 83 and deemed the notice withdrawn.
Whether the proviso to Rule 82(1) could extend the time for instituting the appeal
No. The respondents never applied in writing for a copy of the proceedings within 30 days of the decision and never served such an application on the respondents' counsel, so no certificate of delay could issue.
Rule 82(1) requires lodging the record of appeal within sixty days of the notice of appeal, with the proviso excluding time certified by the registrar only where an application for proceedings was made in accordance with subrule (2) within 30 days and served. Since no letter bespeaking proceedings was sent to the Deputy Registrar and copied to the applicants' counsel within thirty days, the proviso was unavailable and no certificate of delay could be issued.
Legal principles established
#- An appellant cannot benefit from the proviso to Rule 82(1) of the Court of Appeal Rules unless an application for a copy of the proceedings was made in writing, within 30 days of the decision, and served on the respondent.
- Where no steps are taken to prosecute an appeal, the Court may deem the notice of appeal withdrawn under Rule 83.
Court orders
#- 1.The application is allowed
- 2.The Notice of Appeal dated 6th March, 2015 is deemed as withdrawn
- 3.Costs of the application are awarded to the applicants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment & Land Court at Malindi
- HCCC No. 76 of 2006
- Jurisdiction invoked
- Rule 83 of the Court of Appeal Rules (application to strike out/deem a notice of appeal withdrawn)
Relief refused
#Respondents' implied request to be allowed further time to file the record of appeal (waiting for certificate of delay)
No letter bespeaking proceedings was sent to the Deputy Registrar within thirty days and copied to the applicants' counsel, so the proviso to Rule 82(1) was unavailable
Costs
Costs of the application are awarded to the applicants.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There is no explanation whatsoever as to why the Notice of Appeal filed over 2 years ago should not be deemed as having been withdrawn. We say no more. This application has merit. The same is allowed with the result the Notice of Appeal dated 6 th March, 2015 is hereby deemed as withdrawn.
An appellant shall not be entitled to rely on the proviso to sub rule (1) unless his application for such copy was in writing and a copy of it was served upon the respondent.
The Court of Appeal Rules clearly set out the steps to be taken by a party who is desirous of filing an appeal to this Court including the timelines that must be complied with.
Issues in the judgment
#The heading describes the application as arising from a notice of appeal lodged on 9th March, 2016, while the body states the notice of appeal was filed on 9th March, 2015, two days after the judgment of 6th March, 2015.
The deeming order refers to a Notice of Appeal dated 6th March, 2015, whereas the body and heading indicate the notice was filed on 9th March, 2015 (2016 per heading).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles K. Wanguhu & another v Cosmas Kiti & 46 others [2018] KECA 98 (KLR)", Case Analysis (2018). Civil Application No. 64 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/98/eng@2018-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.