Rtd General Daudi Tonje & 1 other v John Bartinga Tonje
The bottom line
#Kenya's Court of Appeal confirmed that a Notice of Appeal dies if you don't file the full appeal within 60 days - and you must prove you served the other side when requesting court proceedings.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to serve the request for proceedings disqualifies an appellant from the proviso to rule 82(1)
Yes. Service of a written request for proceedings on the respondent is a mandatory precondition to excluding the time taken to prepare certified proceedings.
Rule 82(2) expressly requires that the application for a copy of the proceedings be in writing and that a copy be served on the respondent. The respondent conceded the request letter was not copied to the applicants due to his former counsel's inadvertence. Consequently, the preparation time could not be excluded and the record of appeal ought to have been filed within 60 days of the Notice of Appeal, which it was not.
Whether the application was incompetent for being brought outside the 30-day limit in the proviso to rule 84
No. Rule 83 provides an independent, time-unlimited route whereby the Court may, on application or its own motion, deem a Notice of Appeal withdrawn where the appeal was not instituted within the appointed time.
The proviso to rule 84 limits applications to strike out a Notice of Appeal to 30 days from service, but the applicants also invoked rule 83, which imposes no time limit and empowers the court to act suo moto. Given that 60 days had lapsed without the record of appeal being filed, the applicants were entitled to relief under rule 83, and the Court could deem the Notice withdrawn on its own motion.
Whether the delay of approximately seven years in filing the record of appeal was excusable
No. Having failed to bring himself within the proviso to rule 82(1), the respondent could not explain the delay, and the Notice of Appeal was deemed withdrawn under rule 83.
The respondent attributed the delay to the registry's slow preparation of incomplete proceedings, but because the request for proceedings was never served on the applicants, that explanation was legally unavailable to him. The record was filed only on 23rd May 2019, roughly seven years after the Notice of Appeal, leaving the delay unexplained.
Legal principles established
#- An appellant cannot rely on the proviso to rule 82(1) to exclude the time taken to prepare certified proceedings unless the request for proceedings was in writing and a copy was served on the respondent.
- A Notice of Appeal that is not followed by institution of the appeal within 60 days dies a natural death and may be deemed withdrawn by the Court on its own motion under rule 83.
- Rule 83 contains no time limit, so a deeming order may issue long after the 30-day window in rule 84's proviso for striking-out applications.
Court orders
#- 1.The notice of motion dated 16th March 2017 is allowed
- 2.The Notice of Appeal dated 30th April 2012 is deemed as withdrawn, on the Court's own motion under rule 83
- 3.Costs of the application awarded to the applicants
- On appeal from
- High Court of Kenya at Nakuru
- HC SUCC NO. 177 of 2005
- Jurisdiction invoked
- Rules 42(1), 43(1), 82(1), 83 and 84 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rtd General Daudi Tonje & 1 other v John Bartinga Tonje", Case Analysis (2020). Civil Application No. 33 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/608/eng@2020-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.