John Omollo Nyakongo t/a HR Ganijee & Sons v County Government of Kwale & another
The bottom line
#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
#Executive summary
#Key legal issues
#Scope of Rule 83 deeming of a notice of appeal as withdrawn
Rule 83 applies only where circumstances exist to deem the notice withdrawn; where the record of appeal has been filed, the provision does not apply.
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supported by a certificate of delay from the court below, there were no circumstances warranting deeming the notice withdrawn.
Relationship between Rule 83 and Rule 84
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.
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.
Conflicting certificates of delay
Where two disparate certificates of delay exist, the court will not disregard the certificate exhibited by the party who filed the record of appeal.
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.
Legal principles established
#- Rule 83 deeming applies only where circumstances exist from which the notice of appeal can be deemed withdrawn; where the record of appeal has been filed, the deeming provision does not apply.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
#- 1.The applicant's application dated June 10, 2021 is dismissed
- 2.Costs of the application awarded to the 1st respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.