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Court of AppealDismissedCivil Application E047 of 2021· [2022] KECA 591 (KLR)

John Omollo Nyakongo t/a HR Ganijee & Sons v County Government of Kwale & another

Court of Appeal
27 May 2022
1,201 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to kill a county government's appeal because its appeal record had already been filed, so the withdrawal rule didn't apply.

What this practically means

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Executive summary

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The applicant sought an order deeming as withdrawn the County Government of Kwale's notice of appeal dated 24th October 2018, filed against a High Court ruling (P.J. Otieno, J.) of 22nd October 2018 reinstating the applicant's suit in High Court Civil Case No. 96 of 2015. Relying on a certificate of delay issued by the lower court on 2nd June 2021 showing the proceedings were ready for collection on 3rd March 2021, the applicant argued the 1st respondent should have filed its record of appeal by 3rd May 2021 under Rule 82(1), and that failure entitled the court to deem the notice withdrawn under Rule 83. The 1st respondent opposed, producing its own certificate of delay issued 1st July 2021, and asserting it filed the record immediately upon receiving the proceedings. A three-judge bench (Kairu, Nyamweya and Lesiit, JJA) dismissed the application. Applying Borderless Tracking Limited vs. Thigah, the court held Rule 83 deeming is predicated on circumstances warranting deeming, and since the 1st respondent had already filed its memorandum and record of appeal, the deeming provision did not apply. Citing Tropicana Hotels, the court further held Rule 83 is not a substitute for Rule 84 nor an avenue to circumvent the proviso to Rule 84. The court declined to disregard the 1st respondent's certificate of delay, but flagged as puzzling and requiring the High Court's attention the emerging practice of disparate certificates of delay in the same matter. The application was dismissed with costs to the 1st respondent.

Key legal issues

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01

Scope of Rule 83 deeming of a notice of appeal as withdrawn

Holding

Rule 83 applies only where circumstances exist to deem the notice withdrawn; where the record of appeal has been filed, the provision does not apply.

Reasoning

The court applied its recent decision in Borderless Tracking Limited vs. Thigah, holding that the deeming provision is an inbuilt case-management tool to clean up records of notices of appeal not followed up by records of appeal within 60 days. Since the 1st respondent had filed the memorandum and record of appeal, supported by a certificate of delay from the court below, there were no circumstances warranting deeming the notice withdrawn.

p. 3
02

Relationship between Rule 83 and Rule 84

Holding

Rule 83 is not a substitute for Rule 84 and cannot be used as an avenue to circumvent the time limits under the proviso to Rule 84.

Reasoning

Relying on Tropicana Hotels Limited vs. SBM Bank (Kenya) Limited, the court held that Rule 83 applies where the Court has moved suo motu to strike out a notice of appeal, and cannot be deployed by a party to achieve what Rule 84 (extension of time) governs. The applicant could not use Rule 83 to defeat an appeal whose record had been filed.

p. 2
03

Conflicting certificates of delay

Holding

Where two disparate certificates of delay exist, the court will not disregard the certificate exhibited by the party who filed the record of appeal.

Reasoning

The applicant exhibited a certificate of delay suggesting the proceedings were ready in March 2021, while the 1st respondent relied on a certificate issued on July 1, 2021. The 1st respondent denied knowledge of the applicant's certificate. The court found no basis for disregarding the 1st respondent's certificate, though it flagged the phenomenon of disparate certificates as a matter requiring the High Court's attention.

p. 2

Legal principles established

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  • Rule 83 deeming applies only where circumstances exist from which the notice of appeal can be deemed withdrawn; where the record of appeal has been filed, the deeming provision does not apply.
  • Rule 83 is not a substitute for Rule 84 and cannot be used to circumvent the time limits under the proviso to Rule 84.

Court orders

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  1. 1.The applicant's application dated June 10, 2021 is dismissed
  2. 2.Costs of the application awarded to the 1st respondent

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 82(1)
  • Court of Appeal Rules, 2010Rule 83
  • Court of Appeal Rules, 2010Rule 84 (and proviso)
  • Court of Appeal Rules, 2010Rule 81

Cases cited (4)

  • Borderless Tracking Limited vs. Thigah
    Civil Application No. E035 of 2021 [2022] KECA 38 (KLR) (4th February 2022) (Ruling)

    Rule 83 deeming applies only where circumstances exist; contrary circumstances defeat deeming

  • Tropicana Hotels Limited vs. SBM Bank (Kenya) Limited (formerly known as Fidelity Commercial Bank Ltd)
    [2020] eKLR

    Rule 83 applies where the Court moves suo motu to strike out a notice of appeal

  • John Mutai Mwangi & 26 others vs Mwenja Ngure & 4 others
    [2016] eKLR

    Rationale of Rule 83 as an inbuilt case-management clean-up provision

  • Mae Properties Ltd vs. Joseph Kibe & another
    [2017] eKLR

    Rule 83 empowers the Court to unclog the system of trifling notices of appeal

On appeal from
High Court of Kenya at Mombasa
High Court Civil Case No. 96 of 2015
Jurisdiction invoked
Rule 83 of the Court of Appeal Rules, 2010 (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, "John Omollo Nyakongo t/a HR Ganijee & Sons v County Government of Kwale & another", Case Analysis (2022). Civil Application E047 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/591/eng@2022-05-27

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