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Court of AppealAllowedCivil Application No. 194 of 2020

Elizabeth Wanjira Evans v Jimmy Aggrey Simiyu t/a B.W. Mathenge & Co. Advocates [2021] KECA 735 (KLR)

Court of Appeal of Kenya
19 March 2021
Martha Karambu KoomeM. K. KoomeKMK. M'InotiAMA. K. Murgor
992 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The Court of Appeal confirmed that a stalled notice of appeal is deemed withdrawn once 60 days pass without a record of appeal being filed.

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 (Koome, M'Inoti and Murgor, JJ.A.) on a motion by Elizabeth Wanjira Evans seeking to have a notice of appeal lodged by the respondent advocate deemed withdrawn under Rule 83 of the Court of Appeal Rules, 2010. The underlying dispute concerned an advocate-client bill of costs; the Taxing Master had awarded the respondent Kshs 122,120, but Mulwa, J. of the High Court at Nakuru, by ruling delivered on 21st February 2019, set aside the taxation and declared the law firm an illegal entity. The respondent lodged a notice of appeal on 7th March 2019 (filed in the High Court on 12th March 2019) but took no further steps: no record of appeal was filed and no application for proceedings was made. The applicant moved the Court of Appeal twenty-three months later. The respondent filed no response, and the application was canvassed by written submissions without appearance, pursuant to the COVID-19 Practice Directions. Applying Rule 83 and following its decision in Mae Properties Limited v Joseph Kibe & another [2017] eKLR, the Court held that an applicant need only show that the 60 days appointed have lapsed without an appeal being lodged, whereupon the court should deem the notice withdrawn unless a compelling reason in the interests of justice appears. Both facts being established and no reason appearing, the Court allowed the motion, deemed the notice of appeal withdrawn, and made no order as to costs given the respondent's non-appearance. This binds subordinate courts and tribunals on the Rule 84-style deeming jurisdiction under Rule 83.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether a notice of appeal should be deemed withdrawn under Rule 83 of the Court of Appeal Rules, 2010 where the applicant has lodged a notice of appeal but failed to institute the appeal by filing the record of appeal within the appointed time

Key legal issues

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01

Whether the notice of appeal should be deemed withdrawn under Rule 83 of the Court of Appeal Rules, 2010

Holding

The application was merited. The respondent lodged a notice of appeal on 12th March 2019 but never filed a record of appeal, never applied for proceedings, and offered no response contradicting the inaction. Twenty-three months had elapsed, far beyond the 60-day period, so the notice was deemed withdrawn.

Reasoning

Rule 83 provides that a party who lodges a notice of appeal but fails to institute an appeal within the appointed time is deemed to have withdrawn the notice, and the court may make such order on its own motion or on application. The applicant needed only to show that the 60 days had lapsed without an appeal being lodged. Both facts were established, and no compelling reason in the interests of justice was advanced to resist the deeming order.

p. 2

Legal principles established

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  • A party who lodges a notice of appeal but fails to institute the appeal within the appointed time may have the notice deemed withdrawn on application; the applicant need only show that the 60 days appointed have elapsed without an appeal being lodged, and the court should make the deeming order unless persuaded by a compelling reason in the interests of justice.

Court orders

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  1. 1.The notice of motion dated 16th December 2019 is allowed
  2. 2.The notice of appeal dated 7th March 2019 is deemed to have been withdrawn
  3. 3.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
KM
majority
AM
majority
On appeal from
High Court of Kenya at Nakuru
Misc. Civil Application No. 128 of 2015 (arising from Nakuru Civil Appeal No. 233 of 2007)
Jurisdiction invoked
Sections 3(1) & (2), 3A & 3B of the Appellate Jurisdiction Act (Cap 9) and Rules 1(2), 82(1) & (2) and 83 of the Court of Appeal Rules, 2010

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The above being our view, the notice of motion dated 16 th December, 2019 is hereby allowed. We make no order as to costs since the respondent did not appear and hopefully to bring this advocate-client relationship to a less painful end.
p. 2Final orders - application allowed, no order as to costs
Once those two facts are established, we do not see why the Court should not, unless persuaded by some compelling reason in the interests of justice, simply make the order deeming the notice of appeal as withdrawn.
p. 2Test for deeming a notice of appeal withdrawn under Rule 83

Issues in the judgment

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minor

The judgment header shows the coram as sitting at Nyeri, but the delivery clause states the ruling was 'DATED AND DELIVERED AT NAIROBI'.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Elizabeth Wanjira Evans v Jimmy Aggrey Simiyu t/a B.W. Mathenge & Co. Advocates [2021] KECA 735 (KLR)", Case Analysis (2021). Civil Application No. 194 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/735/eng@2021-03-19

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