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Court of AppealAllowedCivil Application No. NAI 104 of 2015· [2019] KECA 364 (KLR)

Francis Wakahiu Theuri v Monica Njeru, Esther Wangui, Catherine Muthoni & Francis Njuru Ngugi t/a Wawage Investment Company & others [2019] KECA 364 (KLR)

Court of Appeal
27 September 2019
2,092 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a notice of appeal can be declared withdrawn if the appellant sits on the case without showing any diligence.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Ouko (P), Karanja and Musinga, JJ.A) determined an application by Francis Wakahiu Theuri seeking to strike out, or alternatively deem withdrawn, a Notice of Appeal dated 17th December 2012 filed by the respondents against a High Court judgment of Nyamweya, J. delivered on 14th December 2012 in H.C.C.C No. 2484 of 1994, a land sale dispute over 20 acres in Ruiru. The respondents filed a preliminary objection contending that the application was time-barred under Rule 84 of the Court of Appeal Rules, 2010, which requires striking-out applications to be brought within 30 days of service of the notice of appeal. The court rejected the objection, holding that the application was properly anchored on Rules 82 and 83, which contain no timelines. The court explained that Rule 83 confers an unfettered discretion to deem an appeal withdrawn where a party files a notice of appeal and then goes to slumber, citing Quicklubes E.A. Limited v. Kenya Railways Corporation. The court found that the respondents had produced no evidence of diligence in pursuing the typing of proceedings or the filing of the record of appeal since December 2012, and dismissed their explanations about a lost file and multiple applications as speculative. The application dated 21st April 2015 was allowed, the Notice of Appeal was deemed withdrawn, and costs were awarded to the applicant.

Key legal issues

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01

Distinction between Rule 83 and Rule 84 applications

Holding

An application to deem a Notice of Appeal withdrawn under Rule 83 is not subject to the 30-day limitation applicable to Rule 84 striking-out applications.

Reasoning

The court drew a clear distinction between the two rules. Rule 83 concerns a party who lodges a notice of appeal but fails to institute the appeal within the appointed time, and imposes no timeline for an application thereunder. Rule 84 governs striking out a notice or appeal and expressly bars applications brought after 30 days from service of the notice or record of appeal. Since the applicant anchored his application on Rules 82 and 83 seeking deeming of the notice as withdrawn, the 30-day strictures did not apply.

p. 3
02

Inordinate delay and diligence under Rule 83

Holding

A notice of appeal may be deemed withdrawn where the appellant fails to demonstrate diligence in pursuing the appeal, such as following up on typing of proceedings.

Reasoning

The court held that while it would be slow to deem an appeal withdrawn where the appellant's efforts were frustrated by circumstances beyond their control, the burden lies on the appellant to demonstrate such diligence. The 1st respondent produced no letters or evidence of follow-up with the Deputy Registrar to expedite typing of proceedings, and mere assertions about a lost file or numerous applications in the trial court were speculative. The matter fell squarely within the Quicklubes principle on parties who go to slumber.

p. 3

Legal principles established

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  • Where a party invokes Rule 84 of the rules, then the application for striking out must be filed within 30 days of service of the notice of appeal or the record of appeal as the case may be. Where however a party invokes Rule 83, then the 30 day strictures do not apply.
  • Rule 83 gives this court unfettered discretion to deem an appeal as withdrawn if a party files a notice of appeal and then goes to slumber, by failing to initiate the other necessary processes to ensure that the appeal is filed and served.

Court orders

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  1. 1.The application dated 21st April, 2015 is allowed and the Notice of Appeal dated 17th December, 2012 is deemed to have been withdrawn
  2. 2.Costs of the application are awarded to the applicant

Authorities

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Legislation

  • Court of Appeal RulesRule 82
  • Court of Appeal RulesRule 83
  • Court of Appeal RulesRule 84

Cases cited (2)

  • Quicklubes E.A. Limited v. Kenya Railways Corporation
    [2014] eKLR
  • Mae Properties Limited vs Joseph Kibe and Another
    (2017) eKLR
On appeal from
High Court of Kenya at Nairobi
H.C.C.C No. 2484 of 1994
Jurisdiction invoked
Rules 82, 83 and 84 of the Court of Appeal Rules, 2010

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, "Francis Wakahiu Theuri v Monica Njeru, Esther Wangui, Catherine Muthoni & Francis Njuru Ngugi t/a Wawage Investment Company & others [2019] KECA 364 (KLR)", Case Analysis (2019). Civil Application No. NAI 104 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/364/eng@2019-09-27

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