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Court of AppealDismissedCivil Application NAI No. 96 of 2017· [2019] KECA 206 (KLR)

James Mungai Magari v Housing Finance Company of Kenya [2019] KECA 206 (KLR)

Court of Appeal
8 November 2019
William OukoW. OukoHOHannah OkwenguFSF. Sichale
1,118 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to kill a stalled appeal because the missing court file—not the party—caused the delay.

What this practically means

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Executive summary

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This was a notice of motion dated 21st April 2017 by James Mungai Magari seeking orders that the notice of appeal filed by Housing Finance Company of Kenya against the judgment of Mabeya, J of 8th March 2013 in HCCC No. 376 of 2007 be deemed withdrawn, or in the alternative struck out, on the basis that no appeal had been instituted within the requisite time. The applicant contended that the respondent's counsel had done nothing about the appeal, and noted that Kshs 600,000 ordered as part payment was withheld as 'security for costs'. The respondent attributed the failure to progress the appeal to the repeated disappearance of the court file, the unavailability of proceedings, and attempts at out-of-court settlement. The Court of Appeal (Ouko, P, Okwengu and Sichale, JJA) reviewed the undisputed sequence of events, including the Deputy Registrar's letter advising an application for reconstruction of the file and the fact that proceedings had never been supplied. The court held that the respondent had made genuine efforts to progress the appeal and that most of the frustrations, including the vanishing file, were attributable to the court itself. Finding no merit in the motion, the court dismissed it with costs to the respondent. The intended appeal was therefore left free to proceed.

Key legal issues

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Whether a Notice of Appeal should be withdrawn or struck out where the respondent has not filed the appeal within the requisite time

Holding

The motion was dismissed; the court found the respondent had actively pursued the appeal and the delay was caused largely by the court's loss of the file and failure to supply proceedings

Reasoning

The undisputed sequence of events showed the respondent filed a notice of appeal, applied for certified proceedings, prepared an application for stay, and was advised by the Deputy Registrar to seek reconstruction of the file. The file kept disappearing and resurfaced only at a notice to show cause hearing. Proceedings were never supplied, though necessary for compiling the record of appeal. Given these court-attributable frustrations, it would be unfair and unjust to strike out the notice of appeal.

p. 2

Legal principles established

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  • A notice of appeal should not be struck out or deemed withdrawn where the delay in instituting the appeal is attributable to the court, such as through loss of the court file and failure to supply proceedings

Court orders

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  1. 1.The Notice of Motion dated 21st April 2017 is dismissed
  2. 2.Costs of the application awarded to the respondent
On appeal from
High Court of Kenya at Nairobi
Milimani Commercial & Tax Division HCCC No. 376 of 2007
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal over matters intended to be appealed to it (this is an application relating to a notice of appeal lodged against a High Court decision, not an appeal under a stated constitutional provision)

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, "James Mungai Magari v Housing Finance Company of Kenya [2019] KECA 206 (KLR)", Case Analysis (2019). Civil Application NAI No. 96 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/206/eng@2019-11-08

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