Doune Farm Ltd v Borop Multipurpose Co-operative Society & 5 others (Civil Application 128 of 2020) [2021] KECA 240 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a notice of appeal is deemed withdrawn if the appellant fails to file the appeal within sixty days, awarding costs to the applicant.
What this practically means
#Executive summary
#Key legal issues
#Consequence of failure to serve a notice of appeal within seven days of lodging it
The Court found it undisputed that service was effected fourteen days after filing, contrary to rule 77, evidencing lack of diligence but ultimately acted under rule 83.
Rule 77 requires service of the notice of appeal within seven days of lodging. Service here occurred fourteen days after filing. The Court relied on Daniel Nkirimpa Monirel vs Sayialel ole Koilel & 4 Others on this point. Coupled with the failure to file the memorandum and record of appeal, this demonstrated want of diligence in pursuing the intended appeal.
Consequence of failure to lodge a memorandum and record of appeal within sixty days
Under rule 83, a party who fails to institute an appeal within the appointed time is deemed to have withdrawn the notice of appeal, and the Court may so order on application.
Rule 82 requires an appeal to be instituted by lodging the memorandum and record of appeal within sixty days of filing the notice of appeal. The respondents had not done so since 7th August 2017. Rule 83 deems such a notice withdrawn and empowers the Court, on its own motion or on application, to make the order, with the defaulting party liable for costs.
Diligence in pursuing an intended appeal
Applying for certified copies of proceedings and ruling is not by itself sufficient diligence where the record of appeal is never filed.
The ruling sought to be appealed was delivered on 31st July 2017; the respondents applied for certified copies on 14th August 2017 but never demonstrated that the copies were supplied or that any further steps were taken. The Court held that either way the respondents had not demonstrated any diligence in pursuing the intended appeal, justifying the deeming order under rule 83.
Legal principles established
#- A party who lodges a notice of appeal but fails to institute the appeal within the appointed time is deemed to have withdrawn the notice, and the Court may so order on its own motion or on application, with the defaulting party liable for costs.
Court orders
#- 1.The respondents' notice of appeal dated 4th August 2017 is deemed to have been withdrawn with costs to the applicant
- Jurisdiction invoked
- Inherent/appellate jurisdiction under the Court of Appeal Rules, particularly rules 77, 82 and 83 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Doune Farm Ltd v Borop Multipurpose Co-operative Society & 5 others (Civil Application 128 of 2020) [2021] KECA 240 (KLR)", Case Analysis (2021). Not stated in judgment (notice of motion dated 13th March 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/240/eng@2021-11-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.