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Court of AppealPartially AllowedCivil Application No. NAI 108 of 2019· [2020] KECA 650 (KLR)

Dalmas Otieno v Stephen Kanyaru M’impwii [2020] KECA 650 (KLR)

Court of Appeal of Kenya
22 May 2020
WKW. KaranjaFSF. SichaleJMJ. Mohammed
1,802 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal ruled that filing a notice of appeal then doing nothing for years means the appeal is treated as abandoned, and the judgment creditor can collect.

What this practically means

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Executive summary

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The applicant obtained a High Court judgment of Ksh 1,500,000 against the respondent in a defamation claim. The respondent filed a notice of appeal on 1st August 2016 and a letter bespeaking proceedings, and obtained conditional stay orders requiring him to deposit Ksh 750,000 in a joint interest-earning account and security for the balance. Nothing further happened for nearly four years, prompting the applicant to move the Court of Appeal under Rule 83 of the Court of Appeal Rules for an order deeming the notice of appeal withdrawn, together with ancillary prayers to set aside the High Court's stay orders and to have the deposited funds released. The court first clarified that the application was not one for striking out an appeal under Rule 84, and was therefore not subject to Rule 84's limitation proviso. Relying on Quicklubes E. A. Limited v Kenya Railways Corporation, the court held that Rule 83 confers an unfettered discretion to deem an appeal withdrawn where an appellant goes to slumber. The respondent's assertion, through his counsel's clerk, that he had been following up the proceedings was held to be inadmissible hearsay, unsupported by any annexed correspondence. The court affirmed that although the duty to compile proceedings lies with the court, the duty to pay the typing deposit and follow up lies with the appellant. Finding the respondent indolent and the applicant prejudiced, the court allowed the application and deemed the notice of appeal withdrawn. It awarded the applicant costs but declined to grant prayers 2 and 3, holding that it had no jurisdiction to set aside the High Court's orders or release the deposit, and instead granted the applicant liberty to move the High Court for that relief.

Key legal issues

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01

Deeming a notice of appeal withdrawn under Rule 83

Holding

The respondent, having filed a notice of appeal in August 2016 and done nothing since beyond writing a letter bespeaking proceedings, went to slumber and the notice of appeal is deemed withdrawn.

Reasoning

The court adopted the rationale in Quicklubes E. A. Limited v Kenya Railways Corporation that Rule 83 confers an unfettered discretion to deem an appeal withdrawn where a party files a notice of appeal and then sleeps on it. No evidence of follow-up with the Registrar, no letter of reminder, and no proof of payment of the typing deposit was produced. Hearsay information from a clerk's assertions was inadmissible.

p. 2
02

Diligence required of an appellant awaiting typed proceedings

Holding

An appellant must pay the deposit for typing and actively follow up; equity favours the diligent.

Reasoning

The court accepted that compiling proceedings is the court's duty, but held the appellant bears the duty of paying the deposit and pursuing the process. A letter requesting proceedings with an undertaking to pay is not enough to jumpstart typing. Without a receipt for the deposit and evidence of follow-up, the applicant is left unable to enjoy the fruits of his judgment, which is prejudicial.

p. 2
03

Admissibility of hearsay evidence in affidavits

Holding

Information deposed to on instructions from a clerk, without an affidavit from that clerk, is inadmissible hearsay.

Reasoning

The respondent claimed his advocates had been following up the proceedings with the Registrar, based on information from one Nixon Muhatia, a clerk in his advocates' office. Because no affidavit was sworn by the clerk and no correspondence from the Registrar was annexed, the assertion was inadmissible and carried no evidential weight.

p. 1

Legal principles established

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  • Under Rule 83, a party who lodges a notice of appeal and fails to institute the appeal within the appointed time is deemed to have withdrawn the notice, and the court may so order on its own motion or on application.
  • While the duty to compile proceedings lies with the court, the duty to pay the typing deposit and follow up on the proceedings lies with the appellant; a mere letter bespeaking proceedings is insufficient.

Court orders

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  1. 1.The Notice of Appeal dated 1st August, 2016 is deemed as withdrawn under Rule 83 of the Court of Appeal Rules
  2. 2.The applicant is awarded costs of the application
  3. 3.The applicant is at liberty to move the High Court for release of the money deposited pursuant to the order of that court

Authorities

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Legislation

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

Cases cited (2)

  • Quicklubes E. A. Limited vs Kenya Railways Corporation
    [2014] eKLR
  • Evans Achimba Vs Stitch Masters Limited
    2019 eKLR
On appeal from
High Court of Kenya at Nairobi
HCCC No. 614 of 2007
Jurisdiction invoked
Rule 83 of the Court of Appeal Rules

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, "Dalmas Otieno v Stephen Kanyaru M’impwii [2020] KECA 650 (KLR)", Case Analysis (2020). Civil Application No. NAI 108 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/650/eng@2020-05-22

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