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Court of AppealDismissedCivil Application No. 91 B of 2019· [2019] KECA 96 (KLR)

Paul John Kimani v Andrew Kariuki Njoroge & another [2019] KECA 96 (KLR)

Court of Appeal
6 December 2019
1,823 words in judgment
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The bottom line

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Kenya's Court of Appeal protected an appellant whose appeal stalled because the court registry failed to provide typed proceedings he had properly requested.

What this practically means

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Executive summary

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The Court of Appeal (Ouko, P., Nambuye and Koome, JJA) dismissed an application by Paul John Kimani seeking to strike out the Notice of Appeal filed by Andrew Kariuki Njoroge against the judgment of the Environment & Land Court (Obaga, J.) of 26 July 2018 in ELC No. 2020 of 2001. The application was anchored on Rules 83 and 84 of the Court of Appeal Rules. The court held that an application under Rule 84 must be filed within thirty days of service of the Notice of Appeal or Record of Appeal, but the thirty-day timeline does not apply where Rule 83 is invoked. Applying the settled principles from Quicklubes E.A. Limited v Kenya Railways Corporation, Mae Properties Ltd v Joseph Kibe and Banking Institution & Finance Union Kenya v Murata Sacco Society, the applicant had to demonstrate that the 1st respondent lacked diligence. The court found that the 1st respondent had timeously requested typed proceedings and judgment, and that the Deputy Registrar had failed to furnish them even after a reminder of 3 April 2019 and by the hearing on 19 September 2019. An appellant who is not responsible for delay in the submission of typed proceedings cannot be penalised for the registry's inaction. The application was accordingly dismissed; the court directed service of the ruling on the Deputy Registrar of the High Court to expedite the process, and ordered costs to abide the outcome of the intended application.

Key legal issues

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01

Whether a Notice of Appeal should be deemed withdrawn under Rule 83 where the appellant has not instituted the appeal within the appointed time

Holding

The court declined to strike out the Notice of Appeal because the 1st respondent timeously requested typed proceedings and the delay was attributable to the Deputy Registrar, not the appellant.

Reasoning

The court restated the principles in Quicklubes and Mae Properties: Rule 83 gives the court discretion to deem an appeal withdrawn where a party goes to slumber, but the applicant bore the burden of demonstrating lack of diligence. Here the 1st respondent had promptly requested proceedings and sent only one reminder; the Deputy Registrar had failed to respond even by the date of hearing. An appellant cannot be penalised for registry inaction, so the application failed.

p. 2

Legal principles established

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  • Where a party invokes Rule 84 of the Court of Appeal Rules, the application to strike out must be filed within 30 days of service of the Notice of Appeal or Record of Appeal; where Rule 83 is invoked, the 30-day timeline does not apply.
  • An appellant who has timeously requested typed proceedings cannot be penalised for delay in instituting an appeal caused by the Deputy Registrar's failure to furnish them.

Court orders

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  1. 1.The applicant's application to strike out the Notice of Appeal is dismissed
  2. 2.A copy of the ruling to be served upon the Deputy Registrar of the High Court to expedite the process
  3. 3.Costs to abide the outcome of the intended application

Authorities

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Legislation

  • Court of Appeal RulesRule 83
  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 82(1) proviso
  • Court of Appeal RulesRule 4

Cases cited (3)

  • Mae Properties Ltd vs Joseph Kibe and Another [2017] eKLR
    [2017] eKLR
  • Quicklubes E.A. Limited v. Kenya Railways Corporation [2014] eKLR
    [2014] eKLR
  • Banking Institution & Finance Union Kenya Vs Murata Sacco Society [2018]
    [2018]
On appeal from
Environment & Land Court of Kenya at Nairobi
Environment & Land Court Cause No. 2020 of 2001
Jurisdiction invoked
Rules 83 and 84 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, "Paul John Kimani v Andrew Kariuki Njoroge & another [2019] KECA 96 (KLR)", Case Analysis (2019). Civil Application No. 91 B of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/96/eng@2019-12-06

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