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Court of AppealAllowedCivil Application No. NYR 26 of 2018· [2021] KECA 789 (KLR)

Nexus Strategy Limited v Samuel Njiraini Ngabia

Court of Appeal
19 March 2021
1,630 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 declared an appellant's abandoned appeal dead under Rule 83, letting the 2014 High Court ruling in the land dispute stand.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru (Ouko (P), Nambuye and Sichale JJ.A.) on an unopposed notice of motion dated 5th March 2018 by Nexus Strategy Limited, invoking Rules 82 and 83 of the Court of Appeal Rules, 2010 and sections 3A and 3B of the Appellate Jurisdiction Act, seeking to have the respondent's notice of appeal dated 6th March 2014 deemed withdrawn. The underlying dispute concerned Dundori/Lanet Block 5/35, bought by the applicant at an auction after AFC exercised its statutory power of sale over the respondent's charged property. The respondent's appeal against his eviction from the property was dismissed by Wendoh, J. on 28th February 2014 in Nakuru HC Civil Appeal No. 3 of 2011. The respondent filed a notice of appeal and requested certified proceedings in March 2014; the Deputy Registrar notified him on 5th May 2016 that proceedings were ready, but no record of appeal was ever filed. The court held that under Rule 82(1) an appellant must lodge the record of appeal within sixty days of the notice of appeal, subject only to the proviso excluding certified preparation time, and that Rule 83 operates as an inbuilt case-management device deeming abandoned notices withdrawn. Adopting its prior decisions in Charles Wanjohi Wathuku and John Mutai Mwangi, the court found merit in the uncontroverted application, allowed it as prayed, deemed the notice of appeal withdrawn, and held the respondent liable for the costs.

Key legal issues

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Whether the respondent's notice of appeal should be deemed withdrawn under Rule 83 for failure to institute the appeal within the time prescribed by Rule 82(1)

Holding

Yes. The respondent filed a notice of appeal on 7th March 2014, requested proceedings on 6th March 2014, was notified on 5th May 2016 that proceedings were ready, yet never filed a record of appeal. The proviso to Rule 82(1) did not operate in his favour in the absence of rebuttal, and the application was allowed as prayed.

Reasoning

Rule 82(1) requires institution of an appeal within sixty days of lodging the notice of appeal, with time excluded only as certified for preparation of proceedings under the proviso. The respondent never filed a record of appeal, roughly six years after the notice and four years after proceedings were declared ready. With no rebuttal from the respondent, the proviso offered no succour. Rule 83 therefore applies, whether invoked suo motu or on application by an aggrieved party, and the court deemed the notice withdrawn, adopting prior expositions of both rules.

p. 3

Legal principles established

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  • An aggrieved party must file and serve a record of appeal within sixty days of lodging the notice of appeal, unless the delay falls within the proviso to Rule 82(1) relating to preparation and delivery of certified proceedings
  • Rule 83 is an inbuilt case-management mechanism under which a notice of appeal not followed by institution of an appeal within the appointed time is deemed withdrawn, on the court's own motion or on application by a party
  • A certificate of delay suffices to exclude delay beyond the prescribed 60 days, where the appellant bespook proceedings within thirty days and served the letter on the respondent

Court orders

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  1. 1.The respondent's notice of appeal dated 6th March, 2014 and filed on 7th March, 2014 is deemed as withdrawn
  2. 2.Costs of the application to be borne by the respondent
On appeal from
High Court of Kenya
Nakuru HC Civil Appeal No. 3 of 2011
Jurisdiction invoked
Rules 82 and 83 of the Court of Appeal Rules, 2010 and sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya

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, "Nexus Strategy Limited v Samuel Njiraini Ngabia", Case Analysis (2021). Civil Application No. NYR 26 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/789/eng@2021-03-19

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