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Court of AppealPartially AllowedCivil Application No. 100 of 2017

Kenya Industrial Estates Limited v Anne Chepsiror & 4 others [2018] KECA 322 (KLR)

Court of Appeal of Kenya
20 September 2018
1,668 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Court of Appeal struck out a notice of appeal filed nearly three years earlier because the appellants never actually filed their appeal in time.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Eldoret on Kenya Industrial Estates Limited's Notice of Motion to strike out the respondents' notices of appeal for want of prosecution following a judgment of the Environment and Land Court (Munyao Sila, J.) delivered on 30th January 2015, which cancelled the respondents' titles to five Eldoret plots, ordered them to vacate the suit premises and permanently restrained them from entering. The applicant was the decree holder; the respondents had lodged notices of appeal in February 2015 but had not instituted any appeal for over two years and nine months. The court applied Rule 80(1) of the Court of Appeal Rules, 2010, holding that where two or more parties give notices of appeal from the same decision, the second and subsequent notices are deemed notices of address for service; thus the operative notice was the one dated 4th February 2015. The court held that under Rule 82(1) an appeal must be instituted within sixty days, and that time is excluded only where the applicant bespeaks proceedings in writing within 30 days, serves the letter on the respondent, and obtains a certificate of delay. None of the respondents satisfied these conditions. A pending ruling on stay of execution, mediation before the National Land Commission, and an application for review were not grounds for excluding time; indeed, seeking review showed an election of the review remedy over appeal. The failure to pay typing deposit and the absence of a certificate of delay left the inordinate delay of nearly three years unexplained. The court allowed the application and struck out the Notice of Appeal dated 4th February 2015 with costs to the applicant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the notice of appeal dated 5th February 2015 filed by the 1st, 4th and 5th respondents is deemed a notice of address for service under Rule 80(1) of the Court of Appeal Rules, 2010, so that the operative notice is that dated 4th February 2015
  2. 2.Whether the 1st, 4th and 5th respondents took an essential step by instituting the appeal within the time prescribed by Rule 82(1), including the proviso excluding certified delay in obtaining proceedings
  3. 3.Whether the 2nd and 3rd respondents had valid reasons, including a certificate of delay, for failing to institute their appeal within the stipulated time
  4. 4.Whether the notices of appeal should be struck out for want of prosecution

Key legal issues

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01

Which of the duplicate notices of appeal is operative

Holding

The first notice of appeal (4th February 2015) is operative; the later notice is deemed a notice of address for service under Rule 80(1)

Reasoning

Both notices were from the same decision of Munyao Sila, J. delivered on 30th January 2015. Rule 80(1) deems second and subsequent notices of appeal from the same decision to be notices of address for service, with those parties becoming respondents. The court agreed with the applicant that the operative notice was that dated 4th February 2015.

p. 2
02

Whether the 1st, 4th and 5th respondents took an essential step by filing the appeal within time

Holding

They did not; no valid reasons justified the delay, the proviso to Rule 82(1) was not invoked, and their pursuit of review indicated they preferred review to appeal

Reasoning

More than two years and nine months elapsed without the appeal being filed. The respondents never applied for a copy of proceedings for purposes of appeal as required by the proviso to Rule 82(1), so no certified time could be excluded. A pending stay ruling is not a ground for exclusion, and their application for review showed an election of remedies.

p. 2
03

Whether the 2nd and 3rd respondents had valid reasons for the delay

Holding

No: their belated application for proceedings lacked payment of typing charges, they pursued mediation before the National Land Commission, and they produced no certificate of delay

Reasoning

Although they applied for proceedings in November 2015, they paid no deposit and took no follow-up. They instead pursued mediation and only re-applied in February 2018 when mediation failed. Counsel conceded they asked for suspension of the ruling pending mediation. Without a certificate of delay from the Registrar, the inordinate delay of nearly three years was unexcused.

p. 3

Legal principles established

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  • Where two or more parties give notice of appeal from the same decision, the second and subsequent notices are deemed notices of address for service and those parties become respondents in the appeal (Rule 80(1))
  • An appeal must be instituted within 60 days of the notice of appeal; time is excluded only where the proviso to Rule 82(1) is satisfied (written application for proceedings within 30 days, copies to and served on the respondent) and a certificate of delay is issued; failing institution, the notice of appeal is deemed withdrawn
  • A pending ruling on an application for stay of execution is not a ground for excluding time for filing an appeal, and pursuing review or mediation instead of appeal evidences abandonment of the intention to appeal
  • Applying for a copy of proceedings without paying typing deposit or obtaining a certificate of delay does not exclude time under Rule 82(1); the notice of appeal will be struck out where no appeal has been filed within the stipulated time

Court orders

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  1. 1.The Notice of Motion dated 23rd November 2017 filed by the applicant is allowed
  2. 2.The Notice of Appeal dated 4th February 2015 filed by the 1st, 4th and 5th respondents is struck out
  3. 3.Costs of the application awarded to the applicant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Eldoret (Environment and Land Court)
Environment and Land Court Case No. 71 of 2013
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 80(1), 82(1), 82(2), 83 and 84 of the Court of Appeal Rules, 2010 (application in an intended appeal)

Relief refused

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Respondents' implied plea to keep their notices of appeal alive on account of pending stay proceedings, mediation, and alleged delay in typing proceedings

No certificate of delay was obtained; the pending ruling and mediation were not grounds for excluding time; the respondents sought review rather than appeal

p. 2

Costs

The Notice of Appeal dated 4th February, 2015 filed by the 1st, 4th and 5th respondents is struck out with costs to the applicant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

by Rule 83, the notice of appeal is deemed as withdrawn if the appeal is not instituted within the prescribed time.
p. 2Effect of failure to institute appeal within 60 days
The fact that the ruling in the application for stay of execution was pending is not a ground for excluding time for filing an appeal.
p. 2Pending stay ruling does not extend appeal time
In the premises, there are no valid reasons which would justify the delay in filing the appeal within the stipulated time. We are satisfied that the 1st, 4th and 5th respondents failed to take an essential step – that is, filing the appeal within the stipulated time.
p. 2Failure to take essential step
Consequently, the Notice of Appeal dated 4th February, 2015 filed by the 1st, 4th and 5th respondents is struck out with costs to the applicant.
p. 3Final orders

Issues in the judgment

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minor

The judgment inconsistently states the date the 2nd and 3rd respondents' notice of appeal was filed, describing it as dated 4th February 2015 but later referring to 'the notice of appeal filed by the 2 nd and 3rd respondents on 5th February, 2015'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Industrial Estates Limited v Anne Chepsiror & 4 others [2018] KECA 322 (KLR)", Case Analysis (2018). Civil Application No. 100 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/322/eng@2018-09-20

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