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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application No. 48 of 2018

Fredrick Odhiambo Ndede v Makueni County Public Service Board & another [2019] KECA 360 (KLR)

Court of Appeal of Kenya
27 September 2019
926 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a Notice of Appeal is deemed withdrawn if no appeal record is filed within 60 days.

What this practically means

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Executive summary

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The applicant moved the Court of Appeal under rules 42(1) and 43(1), 82 and 83 of the Court of Appeal Rules and section 3A of the Civil Procedure Act seeking to have the respondents' Notice of Appeal marked as withdrawn. The respondents had appealed against a ruling of Mbaru, J. of the Employment and Labour Relations Court delivered on 8th October 2015, which ordered that the applicant be paid all salaries due and unpaid from June 2013 pending the hearing and determination of his claim. The Notice of Appeal was lodged on 15th October 2015, but no Memorandum or Record of Appeal was ever filed. The respondents attributed the inaction to the non-availment of typed proceedings, having bespoken them by a letter dated 8th October 2015. The court held that because that letter was not copied to the applicant's advocates as required by the Rules, the respondents could not benefit from the proviso excluding the time taken to prepare proceedings. Accordingly, more than 60 days having elapsed without institution of the appeal, the respondents were deemed to have withdrawn the Notice of Appeal under Rule 83. The court further held that the intended interlocutory appeal had been overtaken by events, since the main suit had been heard and determined on 7th December 2018. The motion succeeded; the Notice of Appeal was deemed withdrawn and no order as to costs was made.

Questions the Court framed

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

  1. 1.Whether the respondents' Notice of Appeal should be struck out / marked as withdrawn for failure to file a record of appeal within the 60-day period prescribed by Rule 82
  2. 2.Whether the respondents' failure to serve the letter bespeaking proceedings on the applicant's lawyers disentitled them from the proviso excluding time taken to prepare proceedings
  3. 3.Whether the intended interlocutory appeal had been overtaken by events following the delivery of judgment in the main suit

Key legal issues

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01

Deemed withdrawal of Notice of Appeal for failure to file record of appeal within the appointed time

Holding

The respondents, having lodged the Notice of Appeal on 15th October 2015 but filed no Memorandum or Record of Appeal within 60 days, were deemed to have withdrawn the Notice of Appeal under Rule 83.

Reasoning

Rule 82 requires an appeal to be lodged within 60 days of the Notice of Appeal by filing a Memorandum and Record of Appeal. No such filing was made. The respondents conceded the record had not been filed, blaming non-availment of typed proceedings, but their bespeaking letter of 8th October 2015 was not copied to the applicant's lawyers, disentitling them from the exclusion-of-time proviso. Rule 83 then deems the notice withdrawn and empowers the court to so order.

p. 2
02

Appeal overtaken by events

Holding

The intended interlocutory appeal against the interim order had become academic because the main suit had been heard and judgment delivered on 7th December 2018.

Reasoning

Counsel informed the court that the main suit before the Employment and Labour Relations Court had been heard and judgment delivered on 7th December 2018. An interlocutory appeal against an order for payment of salaries pending hearing and determination of the suit served no purpose once the suit was determined, and this independently justified allowing the motion to have the Notice of Appeal deemed withdrawn.

p. 2

Legal principles established

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  • A person who lodges a Notice of Appeal but fails to institute the appeal within 60 days by filing the Memorandum and Record of Appeal is deemed to have withdrawn the Notice of Appeal under Rule 83.
  • A party who requests for typed proceedings but does not serve a copy of the request letter on the other side is not entitled to the proviso excluding the time taken to prepare proceedings from the 60-day period under Rule 82.

Court orders

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  1. 1.The Notice of Appeal lodged on 15th October 2015 is deemed as withdrawn under Rule 82 of the Rules of this Court
  2. 2.No order as to costs of the motion

The bench

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

majority
Martha Karambu Koome
M.K. KoomeJA
Currently serving
majority
majority
On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
Cause No. 2106 of 2014
Jurisdiction invoked
Rules 42(1), 43(1), 82 and 83 of the Court of Appeal Rules and Section 3A of the Civil Procedure Act (inherent jurisdiction)

Relief refused

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Costs of the motion

The main suit had been heard and determined, so the court declined to award costs

p. 2

Costs

No order as to costs of the motion; each party to bear their own costs implicitly, stated as 'we make no order as to costs of the motion'

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.

No Memorandum or Record of Appeal was filed within the time required by the Rules of this Court, therefore the respondents are deemed to have withdrawn Notice of Appeal.
p. 2deemed withdrawal under Rule 83
The Notice of Appeal lodged on 15th October, 2015 is deemed as withdrawn under Rule 82 of the Rules of this Court.
p. 2final orders - disposition
Moreover, since the main suit has been heard and determined the intended interlocutory appeal has been overtaken by events.
p. 2mootness / overtaken by events

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, "Fredrick Odhiambo Ndede v Makueni County Public Service Board & another [2019] KECA 360 (KLR)", Case Analysis (2019). Civil Application No. 48 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/360/eng@2019-09-27

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