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Court of AppealAllowedCivil Application No. 81 of 2018· [2020] KECA 356 (KLR)

Esther Jelagat Ngeny & another v Peter Chepkochoi Mitei & 2 otherseKLR [2020] KECA 356 (KLR)

Court of Appeal of Kenya
7 August 2020
AMA.K. MurgorFSF. SichaleSKS. ole Kantai
456 words in judgment
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The bottom line

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The Court of Appeal deemed an unserved, unprosecuted notice of appeal withdrawn, ending the respondents' attempt to appeal a 2014 land ruling.

What this practically means

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Executive summary

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This Court of Appeal ruling (Murgor, Sichale and ole Kantai, JJ.A.) determined a Motion by Esther Jelagat Ngeny and Christopher Kiplagat Yego seeking to strike out or withdraw a notice of appeal lodged by the respondents. The notice of appeal, dated 10th July, 2014, targeted the ruling of Munyao Sila, J. in the Environment and Land Court at Eldoret (E.L.C. No. 193 of 2013) delivered on 26th June, 2014, in which the plaint was struck out as res judicata, among other findings, and a stay of execution had been granted. The applicants argued that the notice was never served on them, that no appeal had been filed more than 60 days after the notice, and that the respondents continued to enjoy the trial court's stay while the delay remained inordinate and unreasonable. The court reviewed rules 77, 82, 83 and 84 of the Court of Appeal Rules, noting that rule 77 requires service of a notice of appeal within 7 days of lodgment and rule 83 addresses failure to institute an appeal within the required time. Finding no evidence that proceedings had been applied for and that the 60-day period had expired without an appeal being filed, the court allowed the application, deemed the notice of appeal withdrawn under rule 83, and awarded the applicants costs of the Motion. The decision binds subordinate courts and tribunals on the consequences of non-compliance with rule 83.

Key legal issues

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01

Deeming a notice of appeal withdrawn under rule 83

Holding

The notice of appeal was deemed withdrawn where it was not served on the applicants, no appeal was instituted within 60 days, and there was no evidence that proceedings were applied for.

Reasoning

The court found that the intended appellants filed a notice of appeal on 10th July, 2014 but did not serve it on the applicants contrary to rule 77, which requires service within 7 days of lodgment. Over 60 days had elapsed with no appeal instituted and no evidence of an application for proceedings. Rule 83 governs situations where an appellant fails to institute an appeal within the required time, and on those facts the court exercised its power to deem the notice withdrawn.

p. 1

Legal principles established

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  • Where an appellant fails to serve a notice of appeal within 7 days of lodgment and fails to institute the appeal within the required time, the notice of appeal may be deemed withdrawn under rule 83 of the Court of Appeal Rules.

Court orders

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  1. 1.The notice of appeal dated 10th July, 2014 is deemed withdrawn under rule 83 of the Court of Appeal Rules
  2. 2.The applicants are awarded costs of the Motion

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 1B
  • Court of Appeal RulesRule 77
  • 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 Eldoret
E.L.C. No. 193 of 2013
Jurisdiction invoked
Rules 82, 83 and 84 of the Court of Appeal Rules and Sections 1A and 1B of the Civil Procedure Act

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, "Esther Jelagat Ngeny & another v Peter Chepkochoi Mitei & 2 otherseKLR [2020] KECA 356 (KLR)", Case Analysis (2020). Civil Application No. 81 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/356/eng@2020-08-07

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