Francis Wakahiu Theuri v Monica Njeru, Esther Wangui, Catherine Muthoni & Francis Njuru Ngugi t/a Wawage Investment Company & others [2019] KECA 364 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a notice of appeal can be declared withdrawn if the appellant sits on the case without showing any diligence.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
#Executive summary
#Key legal issues
#Distinction between Rule 83 and Rule 84 applications
An application to deem a Notice of Appeal withdrawn under Rule 83 is not subject to the 30-day limitation applicable to Rule 84 striking-out applications.
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 Since the applicant anchored his application on Rules 82 and 83 seeking deeming of the notice as withdrawn, the 30-day strictures did not apply.
Inordinate delay and diligence under Rule 83
A notice of appeal may be deemed withdrawn where the appellant fails to demonstrate diligence in pursuing the appeal, such as following up on typing of proceedings.
The court held that while it would be slow to deem an appeal withdrawn where the appellant's efforts were frustrated by circumstances beyond their control, the burden lies on the appellant to demonstrate such diligence.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.
Legal principles established
#- 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- Rule 83 gives this court unfettered discretion to deem an appeal as withdrawn if a party files a notice of appeal and then goes to slumber, by failing to initiate the other necessary processes to ensure that the appeal is filed and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
#- 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.Costs of the application are awarded to the applicant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.