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Court of AppealAllowedCivil Application No. NYR 95 of 2018

Spencon (K) Limited v Hema Investments Ltd & another [2021] KECA 850 (KLR)

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

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The Court of Appeal struck out an appeal notice left idle for over four years, confirming that filed appeals must be actively pursued or they die.

What this practically means

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Executive summary

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This ruling of the Court of Appeal (Koome, M'inoti and Murgor, JJ.A.) determined a motion by Spencon (K) Limited seeking to have a notice of appeal filed by Hema Investments Ltd deemed withdrawn under rule 83 of the Court of Appeal Rules. The underlying suit, filed in 1997 against Spencon and the Kericho Municipal Council, was dismissed for want of prosecution by Emukule, J. on 18th May 2012. Hema's application to set aside that dismissal was refused by Mulwa, J. in a ruling dated 14th July 2016. Hema filed a notice of appeal on 25th July 2016 but never lodged a record of appeal, even though the proceedings had been typed and were ready for collection. Spencon's motion, unopposed by either respondent, sought to clear the notice from the record. Applying its earlier decision in John Mutai Mwangi v. Mwenja Ngure & 4 Others, the Court explained that rule 83 is a case-management device to clean up the court records and to discourage the filing of frivolous notices of appeal filed without any intention of prosecuting an appeal. Noting the age of the suit - some 24 years - and the passage of over four years since the notice of appeal, the Court allowed the application, deemed the notice of appeal withdrawn under rule 83, and awarded Spencon the costs of the application. The decision below was not disturbed; the appeal process was simply extinguished.

Key legal issues

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01

Whether a notice of appeal not followed by a record of appeal within the prescribed time should be deemed withdrawn

Holding

The Court deemed the notice of appeal withdrawn, holding that rule 83 is a case-management device to clean up the records and discourage frivolous notices of appeal filed without any intention of filing an appeal.

Reasoning

The 1st respondent filed a notice of appeal on 25th July 2016 against the ruling of Mulwa, J. but never lodged a record of appeal, despite proceedings having been typed and ready for collection. The suit was filed in 1997, some 24 years earlier, and over four years had passed since the notice of appeal. Neither respondent filed a replying affidavit or submissions. The Court was satisfied that deeming the notice withdrawn was appropriate.

p. 1

Legal principles established

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  • Rule 83 of the Court of Appeal Rules empowers the Court to deem a notice of appeal as withdrawn where no record of appeal is lodged within the prescribed time, as a case-management device to clean up the court records and discourage frivolous notices of appeal.

Court orders

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  1. 1.The 1st respondent's notice of appeal dated 25th July 2016 is deemed withdrawn under rule 83 of the Court of Appeal Rules
  2. 2.The applicant is awarded the costs of the application
On appeal from
High Court of Kenya at Nakuru
HCCC No. 227 of 1997
Jurisdiction invoked
Rule 83 of the Court of Appeal Rules (power to deem a notice of appeal as 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, "Spencon (K) Limited v Hema Investments Ltd & another [2021] KECA 850 (KLR)", Case Analysis (2021). Civil Application No. NYR 95 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/850/eng@2021-03-19

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