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Court of AppealPartially AllowedCivil Application 78 of 2019· [2022] KECA 410 (KLR)

Mwangi & another (Suing as the Legal Representative of the Estate of Joseph Wangai Muraya – Deceased) v Alfarah Wholesalers Limited

Court of Appeal
4 March 2022
DMD.K. MusingaAMA.K. Murgor
1,051 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that sitting on a notice of appeal for over a year without filing it means the appeal 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 at Nakuru on a Notice of Motion dated 20th May 2019 brought by the applicants, the legal representatives of the estate of Joseph Wangai Muraya, under sections 3 and 3A of the Appellate Jurisdiction Act and rule 83 of the Court of Appeal Rules. The applicants sought to have the respondent's notice of appeal dated 1st December 2017 deemed withdrawn, the release of security deposited in the ELRC, liberty to execute for the decretal balance, and costs. The underlying dispute concerned enforcement before the Nakuru Employment and Labour Relations Court of an award of Kshs.1,920,000.00 made by the Directorate of Occupation Health and Safety in respect of the death of the respondent's employee. Radido, J. dismissed the respondent's application to set aside the enforcement orders on 1st December 2017; the respondent filed a notice of appeal and an application for stay of execution but took no further steps to lodge a memorandum or record of appeal. The respondent did not file a replying affidavit or submissions despite service. Applying rule 83, the court found that one year and five months had lapsed with no steps or intention to pursue the appeal, and in the interest of justice deemed the notice of appeal withdrawn, with costs to the applicants. The ruling was signed under rule 32(3) since W. Ouko, J.A. had ceased to hold office upon appointment to the Supreme Court. The court did not expressly grant the sought release of security or liberty to execute.

Key legal issues

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01

Deeming a notice of appeal withdrawn for default under rule 83

Holding

Where a period of one year and five months lapsed after the notice of appeal was filed with no steps taken towards the appeal, the notice is deemed withdrawn under rule 83

Reasoning

The court applied rule 83, noting the notice of appeal was lodged on 1st December 2017 and the application dated 20th May 2019, with nothing on the record showing the respondent took any further steps or intended to pursue the appeal. In the interest of justice and fairness to the applicants, the notice was deemed withdrawn.

p. 2

Legal principles established

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  • Under rule 83 of the Court of Appeal Rules, 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

Court orders

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  1. 1.The notice of appeal filed on 1st December 2017 is deemed to have been withdrawn
  2. 2.Costs of the application to the applicants

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 3
  • Appellate Jurisdiction Actsection 3A
  • Court of Appeal Rulesrule 83
  • Court of Appeal Rulesrule 32(3)

Cases cited (1)

  • Julia Wanjiru & 4 others vs Jacinta Wairimu Njoroge
    [2013] eKLR

    Supporting the rule 83 proposition that a notice of appeal not instituted within the appointed time is deemed withdrawn

On appeal from
Employment and Labour Relations Court at Nakuru
Misc. Application No. 21 of 2017
Jurisdiction invoked
Sections 3 and 3A of the Appellate Jurisdiction Act and rule 83 of the Court of Appeal Rules

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, "Mwangi & another (Suing as the Legal Representative of the Estate of Joseph Wangai Muraya – Deceased) v Alfarah Wholesalers Limited", Case Analysis (2022). Civil Application 78 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/410/eng@2022-03-04

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