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Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application 6 of 2020· [2022] KECA 667 (KLR)

Brooke Bond (K) Ltd v Gezzam

Court of Appeal
8 July 2022
637 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Kenya's Court of Appeal confirmed that a notice of appeal left unprosecuted for six years is deemed withdrawn, with costs against the defaulting party.

What this practically means

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Executive summary

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Brooke Bond (K) Ltd moved the Court of Appeal at Mombasa by notice of motion dated 18 November 2019, under sections 3A and 3B of the Appellate Jurisdiction Act and Rule 83 of the Court of Appeal Rules 2010, seeking an order that a notice of appeal dated 9 October 2013 filed by Elisha Kirigha Gezzam be deemed withdrawn. The notice related to an intended appeal against a judgment of the Industrial Court of Kenya at Mombasa (Radido, J) delivered on 27 September 2013 in Civil Suit No 40 of 2013. The applicant contended that more than six years after lodging the notice, the appellant had taken no step to institute the appeal. The motion was served by email, and the hearing proceeded on written submissions due to the Covid-19 pandemic; the appellant filed neither a reply nor submissions, leaving the motion unopposed. The court applied Rule 83, which deems a notice of appeal withdrawn where the party fails to institute the appeal within the appointed time, and noted that under Rule 82 the appellant had 60 days to institute the appeal. Finding no explanation for the omission and concluding the appellant had lost interest, the court allowed the motion and deemed the notice of appeal withdrawn, with orders as prayed, including costs. The ruling is a single judgment of a three-judge bench (Okwengu, Murgor and Sichale, JJA) and binds subordinate courts on the operation of Rule 83.

Key legal issues

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01

Whether an unprosecuted notice of appeal should be deemed withdrawn under Rule 83

Holding

The notice of appeal filed six years earlier without any step to institute the appeal is deemed withdrawn; the appellant's inaction and failure to respond showed loss of interest.

Reasoning

Rule 82 required the appellant to institute the appeal within 60 days of filing the notice. Six years passed with no step taken and no explanation offered, and the appellant did not even respond to the motion. The court therefore found it appropriate to deem the notice withdrawn under Rule 83, which also renders the defaulting party liable for costs.

p. 2

Legal principles established

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  • 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 application, with the defaulting party liable for costs.

Court orders

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  1. 1.The notice of appeal dated 9 October 2013 filed by the respondent is deemed withdrawn
  2. 2.The applicant's motion is allowed and orders issued as prayed in the motion

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A & 3B
  • Court of Appeal Rules 2010Rule 83
  • Court of Appeal Rules 2010Rule 82
  • Court of Appeal Rules, 2022Rule 85 (renumbered Rule 83 of the 2010 Rules)

Cases cited (1)

  • Mae Properties Limited v Joseph Kibe & another
    [2017] eKLR

    Support for deeming an unprosecuted notice of appeal withdrawn under Rule 83

On appeal from
Industrial Court of Kenya at Mombasa
Civil Suit No 40 of 2013 (Formerly Mombasa HCCC No. 83 of 2006)
Jurisdiction invoked
Sections 3A & 3B of the Appellate Jurisdiction Act and Rule 83 of the Court of Appeal Rules 2010

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, "Brooke Bond (K) Ltd v Gezzam", Case Analysis (2022). Civil Application 6 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/667/eng@2022-07-08

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