Paul John Kimani v Andrew Kariuki Njoroge & another [2019] KECA 96 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a Notice of Appeal should be deemed withdrawn under Rule 83 where the appellant has not instituted the appeal within the appointed time
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.
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court restated the principles in Quicklubes and Mae Properties: Rule 83 gives the court discretion to deem an appeal withdrawn where a party goes to slumber, but the applicant bore the burden of demonstrating lack of diligence.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.
Legal principles established
#- 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
#- 1.The applicant's application to strike out the Notice of Appeal is dismissed
- 2.A copy of the ruling to be served upon the Deputy Registrar of the High Court to expedite the process
- 3.Costs to abide the outcome of the intended application
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.