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Court of AppealAllowedCivil Application No. 36 of 2019· [2020] KECA 315 (KLR)

Peter Kagunza Adaji v Sikuku Martin Maiyo & another [2020] KECA 315 (KLR)

Court of Appeal of Kenya
9 October 2020
HOHannah OkwenguJMJ. MohammedSKS. ole Kantai
605 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal notice because the appellant missed the 60-day deadline to file the appeal record after lodging notice.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal (Okwengu, J. Mohammed and Kantai, JJ.A.) delivered at Nairobi on 9th October 2020 in a motion brought under rules 83 and 84 of the Court of Appeal Rules seeking to strike out a Notice of Appeal. The underlying judgment was delivered by Mwangi Njoroge, J. of the Environment and Land Court at Kitale on 20th December 2017, in favour of the applicant (plaintiff below), with the 2nd respondent's counter-claim dismissed. The 2nd respondent lodged a Notice of Appeal against the whole judgment on 17th January 2018 but took no further steps. The applicant contended that no appeal was instituted within 60 days as required by rule 82, and that no letter bespeaking proceedings was issued or, if issued, was not copied to the applicant, so the proviso to rule 82 could not avail the 2nd respondent. The 2nd respondent filed no replying affidavit and did not appear, though the court was satisfied she had been served. The court, applying rule 82 and its proviso together with sub-rule (2), held that time does not stop running unless the letter requesting proceedings is copied to the other side. Finding no letter requesting proceedings and no record of appeal filed within 60 days or at all, the court allowed the motion, struck out the Notice of Appeal, and awarded the applicant the costs of the motion. The ruling is binding on the Environment and Land Court and subordinate courts on the computation of time under rule 82.

Key legal issues

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Whether the Notice of Appeal should be struck out for failure to take essential steps in the appeal

Holding

The Notice of Appeal was struck out because no record of appeal was filed within 60 days of lodging the Notice of Appeal and no letter requesting proceedings was issued.

Reasoning

Rule 82 requires institution of an appeal within 60 days of lodging the Notice of Appeal. The proviso protects an appellant who within 30 days applies for copies of proceedings, but sub-rule (2) requires that letter to be copied to the other side for time to stop running. Here no letter requesting proceedings was issued and no record of appeal was filed within 60 days or at all, so an essential step was not taken within the prescribed time, warranting striking out under rules 83 and 84.

p. 1

Legal principles established

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  • An appeal must be instituted within 60 days of the date when the Notice of Appeal was lodged; time does not stop running unless the letter bespeaking proceedings is copied to the other side.
  • A party affected by an appeal may, under rule 83, apply at any time, before or after institution of the appeal, to strike out the appeal where no appeal lies or an essential step has not been taken within the prescribed time.

Court orders

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  1. 1.The Notice of Appeal lodged by the 2nd respondent at the Environment and Land Court, Kitale is struck out
  2. 2.The applicant is awarded the costs of the Motion

Authorities

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Legislation

  • Court of Appeal Rulesrule 82
  • Court of Appeal Rulesrule 83
  • Court of Appeal Rulesrule 84
On appeal from
Environment and Land Court of Kenya at Kitale
ELC Case No. 35 of 2016
Jurisdiction invoked
Rules 83 and 84 of the Court of Appeal Rules (inherent appellate procedural jurisdiction to strike out a notice of appeal)

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, "Peter Kagunza Adaji v Sikuku Martin Maiyo & another [2020] KECA 315 (KLR)", Case Analysis (2020). Civil Application No. 36 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/315/eng@2020-10-09

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