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Court of AppealPartially AllowedCivil Application E205 of 2021· [2022] KECA 476 (KLR)

See Bound Company Limited v London Distillers (K) Limited

Court of Appeal
18 March 2022
WKW KaranjaFSF SichaleAMA Mbogholi-Msagha
1,897 words in judgment
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The bottom line

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Kenya's Court of Appeal killed a 13-year-old dormant appeal, freeing the winner of a 2008 case to finally collect their money.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Karanja, Sichale and Mbogholi-Msagha, JJA) on a notice of motion by See Bound Company Limited seeking to strike out, or deem withdrawn, London Distillers (K) Limited's notice of appeal filed in 2008 against a High Court judgment of Kimaru, J. of 30th May 2008 awarding the applicant Ksh. 2,183,700 plus costs and interest. The respondent had obtained stay of execution orders from the High Court on 11th June 2010 conditional on furnishing security, filed its notice of appeal, but never instituted the appeal. The court file went missing at some point, and although the Deputy Registrar was directed in March 2019 to certify the proceedings, the respondent took no steps for a further two years. The court found the respondent's indolence inexcusable, its claim that the file had disappeared again unsupported by evidence, and noted the respondent continued to enjoy stay orders for over a decade while the applicant could not execute or write off the debt. Applying Rule 83 of the Court of Appeal Rules, and endorsing its earlier decision in Mae Properties Limited v Joseph Kibe & Another on the mandatory deeming consequence of non-institution, the court allowed the application: the notice of appeal was deemed withdrawn, the High Court stay orders were discharged, and the applicant was awarded costs, leaving it free to execute the 2008 decree.

Key legal issues

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01

Deeming of a notice of appeal as withdrawn under Rule 83

Holding

The respondent, having lodged a notice of appeal in 2008 but never instituted the appeal for almost 13 years, was indolent and its notice of appeal was deemed withdrawn under Rule 83.

Reasoning

The court found the history uncontested: the appeal was never instituted despite the notice of appeal being filed in 2008. The respondent requested certified proceedings only years after judgment, and after the 2019 certification order nothing was done for two years. No plausible explanation was offered; the missing-file claim was unsupported by evidence. The respondent's continued enjoyment of stay orders prejudiced the applicant, and Rule 83's deeming consequence is mandatory.

p. 3
02

Consequence of deemed withdrawal on interim stay orders

Holding

Once the notice of appeal is deemed withdrawn, no appeal is pending and the stay of execution orders granted pending appeal must be discharged.

Reasoning

The stay orders had been granted by the High Court on 11th June 2010 conditional on an intended appeal. With the notice of appeal deemed withdrawn, the foundation for the stay fell away, and the applicant was entitled to proceed with execution of the 2008 judgment and decree.

p. 4

Legal principles established

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  • Under Rule 83, a notice of appeal is deemed withdrawn the moment the appointed time for instituting the appeal lapses, and the court may so declare on application or its own motion.
  • Rule 83 is intended to stem abuse of court process and rid the registry of speculative notices of appeal filed in holding mode.

Court orders

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  1. 1.The Notice of Appeal dated 10th June 2008 is deemed as having been withdrawn pursuant to Rule 83 of the Court of Appeal Rules
  2. 2.The stay orders granted by the High Court on 11th June 2010 are discharged
  3. 3.Costs of the application to the applicant

Authorities

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Legislation

  • Appellate Jurisdiction ActRules 3A, 3B
  • Court of Appeal Rules, 2010Rule 31
  • Court of Appeal Rules, 2010Rule 42
  • Court of Appeal Rules, 2010Rule 43
  • Court of Appeal Rules, 2010Rule 53
  • Court of Appeal Rules, 2010Rule 82
  • Court of Appeal Rules, 2010Rule 83
  • Court of Appeal Rules, 2010Rule 84

Cases cited (1)

  • Mae Properties Limited vs Joseph Kibe & Another
    [2017] eKLR

    Rule 83's deeming consequence for non-institution of an appeal is mandatory and sets in the moment the appointed time lapses.

On appeal from
High Court of Kenya at Nairobi
H.C.C. Suit No. 184 of 2001
Jurisdiction invoked
Appellate Jurisdiction Act (Rules 3A, 3B) and Court of Appeal Rules 2010 (Rules 31, 42, 43, 53, 83, 84)

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, "See Bound Company Limited v London Distillers (K) Limited", Case Analysis (2022). Civil Application E205 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/476/eng@2022-03-18

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