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Court of AppealAllowedCivil Application No. 24 of 2017· [2018] KECA 145 (KLR)

Bamburi Cement Ltd v Evanson Mwawasi Mwadime

Court of Appeal
15 November 2018
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
712 words in judgment
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The bottom line

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Kenya's Court of Appeal declared an appeal abandoned after nine years of inaction, confirming that dormant appeal notices can be struck out.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Mombasa (Visram, Karanja and Koome, JJ.A) on a notice of motion filed on 11th May 2017 by Bamburi Cement Ltd under Rule 83 of the Court of Appeal Rules. The underlying suit, H.C.C.C No. 442 of 2000, in which Evanson Mwawasi Mwadime claimed terminal dues from Bamburi Cement Ltd, was dismissed by Sergon, J. on 26th February 2009. The respondent lodged a Notice of Appeal on 4th March 2009 and requested typed proceedings, but took no further step to institute the appeal; by the time of the application some eight years had elapsed. Despite being served, the respondent neither filed a response nor appeared at the hearing. The court held that the inexcusable and inordinate delay of about nine years, coupled with the respondent's evident lack of interest, placed him squarely within the operation of Rule 83, and it adopted its earlier exposition of the Rule in Quicklubes E. A. Limited v Kenya Railways Corporation [2014] eKLR, noting that Rule 83 confers an unfettered discretion exercisable even suo motu and is designed to stem abuse of process and promote case management. The application was allowed with costs and the Notice of Appeal dated 4th March 2009 was deemed withdrawn. The underlying High Court judgment stands undisturbed; this ruling does not disturb any decision below.

Key legal issues

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01

Deemed withdrawal of a notice of appeal under Rule 84/83 of the Court of Appeal Rules

Holding

A respondent may apply under Rule 83 to have a stale notice of appeal deemed withdrawn where the appellant has failed to institute the appeal within the prescribed time under Rule 82(1); inordinate and inexcusable delay plus lack of interest justify the order.

Reasoning

The respondent lodged a Notice of Appeal on 4th March 2009 but took no further step for about 8 years, taking none even to oppose the application. The court, adopting its reasoning in Quicklubes E. A. Limited v Kenya Railways Corporation, held that Rule 83 confers an unfettered discretion exercisable even suo motu, and that the respondent placed himself squarely within the operation of the Rule. The Rule stems abuse of process and promotes case management efficiency.

p. 1

Legal principles established

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  • Under Rule 83 of the Court of Appeal Rules, a party who lodges a notice of appeal but fails to institute the appeal within the appointed time is deemed to have withdrawn the notice, and the court may so declare on its own motion or on application, even after very long delay.

Court orders

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  1. 1.The application dated 11th May 2017 is allowed with costs
  2. 2.The Notice of Appeal dated 4th March 2009 is deemed as withdrawn
On appeal from
High Court of Kenya at Mombasa
H.C.C.C No. 442 of 2000
Jurisdiction invoked
Rule 83 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bamburi Cement Ltd v Evanson Mwawasi Mwadime", Case Analysis (2018). Civil Application No. 24 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/145/eng@2018-11-15

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