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Court of AppealPartially AllowedCivil Application No. NYR 11 of 2020· [2021] KECA 848 (KLR)

Taprandich Chumo v James Kiplimo Rotich

Court of Appeal
19 March 2021
Martha Karambu KoomeM. K. KoomeKMK. M'inotiAMA. K. Murgor
838 words in judgment
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The bottom line

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The Court of Appeal ruled that an appeal notice left dormant for years—without a filed record or an extension request—is treated as abandoned.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Koome, M'inoti and Murgor, JJ.A) on a motion by the applicant, Taprandich Chumo, seeking an order deeming the respondent's notice of appeal, dated 22nd August 2017, as withdrawn under rule 83 of the Court of Appeal Rules. The notice targeted the judgment of the Environment and Land Court at Kericho (Onyango, J.) of 30th May 2017 in ELCC No. 45 of 2017 (O.S), which had been rendered in the applicant's favour. The applicant deposed that more than three years had passed without the respondent filing the record of appeal, and that the respondent, who enjoyed a stay of execution from the trial court, had gone to sleep. She relied on John Mutai Mwangi v. Mwenja Ngure & 4 Others, submitting that rule 83 is a case management device to clean up the court records and deter frivolous notices of appeal. The respondent's grounds of opposition were dismissed by the court as a study in meaningless deployment of words. He asserted in submissions that his advocate's clerk inadvertently failed to file the record and that he was incapacitated by delays in typing proceedings, and urged the court to enlarge time. The court held that his statements, made without a replying affidavit, had no probative value; he conceded failure to file in time, made no application for extension of time, and did not file the record even after service of the application. The court allowed the application, deemed the notice of appeal withdrawn under rule 83, and awarded the applicant the costs of the application. The ruling was delivered at Nairobi on 19th March 2021.

Key legal issues

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01

Deeming a notice of appeal withdrawn under rule 83 where no record of appeal is filed within the prescribed time

Holding

The notice of appeal was deemed withdrawn because the respondent conceded he did not file the record of appeal in time, filed no replying affidavit, made no application for extension of time, and did not file the record even after service of the application.

Reasoning

The court found the respondent's statements had no probative value as they were made in submissions, not on affidavit. The respondent admitted receipt of the proceedings and attributed the failure to his advocate's clerk, yet did not move for extension of time. The court held the case appropriate for deeming the notice withdrawn and allowed the application.

p. 2

Legal principles established

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  • A notice of appeal not followed by the filing of a record of appeal within the prescribed time may be deemed withdrawn under rule 83 of the Court of Appeal Rules, particularly where the intending appellant neither files the record nor applies for extension of time even after being served with the application to deem the notice withdrawn.

Court orders

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  1. 1.The application dated 12th January 2020 is allowed
  2. 2.The respondent's notice of appeal dated 22nd August 2017 is deemed withdrawn under rule 83 of the Court of Appeal Rules
  3. 3.The applicant is awarded the costs of the application
On appeal from
Environment and Land Court at Kericho
ELCC No. 45 of 2017 (O.S)
Jurisdiction invoked
Rule 83 of the Court of Appeal Rules (application to deem a notice of appeal withdrawn)

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, "Taprandich Chumo v James Kiplimo Rotich", Case Analysis (2021). Civil Application No. NYR 11 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/848/eng@2021-03-19

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