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Court of AppealPartially AllowedCivil Application (as stated in judgment: notice of motion dated October 14, 2022)· [2023] KECA 921 (KLR)

Gamma Villa Limited v Kenya Ports Authority (Civil Application E068 of 2022) [2023] KECA 921 (KLR)

Court of Appeal
28 July 2023
PNP. NyamweyaJLJ. LesiitGOG.V. Odunga
2,171 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that failing to take required appeal steps within 60 days means your notice of appeal is treated as withdrawn.

What this practically means

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Executive summary

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In this interlocutory application before the Court of Appeal at Mombasa (Nyamweya, Lesiit and Odunga, JJ.A), Kenya Ports Authority sought an order deeming two notices of appeal lodged by Gamma Villa Limited on June 10, 2022 in Mombasa high court Miscellaneous Suit No 207 of 2021 and Miscellaneous Civil Suit No E234 of 2021 as withdrawn. The notices followed a ruling by Sewe J. delivered on May 25, 2022 striking out Gamma Villa's enforcement application of an arbitral award and allowing KPA's application setting aside the award. KPA contended that Gamma Villa failed to institute the appeals within 60 days by August 15, 2022, having made no application for the proceedings as required by the proviso to rule 82 of the Court of Appeal Rules, 2010, so that the notices died a natural death under the deeming provision of rule 83. Gamma Villa resisted, arguing that its appeals required leave of the high court under section 75(1) of the Civil Procedure Act, relying on Nyutu Agrovet, and that deeming the notices withdrawn would drive it from the seat of justice contrary to articles 47, 48 and 50(1) of the Constitution; it had also filed an extension of time application. The court allowed the application, holding that the steps for instituting an appeal are those required by the Court's Rules alone, that none had been demonstrated, and that the reasons for delay were relevant only to the extension application which was not before it. It emphasised that the timelines in the Rules are indispensable and command obedience, deemed both notices of appeal withdrawn, and awarded KPA the costs of the application.

Key legal issues

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01

Whether a pending application for leave to appeal in the high court excuses failure to institute the appeal within 60 days of lodging the notice of appeal

Holding

No. The steps for instituting an appeal are governed solely by the Court of Appeal Rules; none of the required steps was demonstrated, and the reasons for delay belong only to an extension-of-time application which was not before the court.

Reasoning

The court held that rule 83 (now rule 85) is predicated on circumstances from which the court can deem a notice of appeal withdrawn. Institution of an appeal requires steps under the Court of Appeal Rules - seeking proceedings, certificate of delay, and filing the record. The respondent demonstrated none. Its reliance on the pending leave application was irrelevant because the extension of time application was not before the court. Accordingly the notices of appeal were deemed withdrawn and costs awarded.

p. 4

Legal principles established

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  • An appeal is instituted within 60 days by taking the steps required by the Court of Appeal Rules (seeking typed proceedings, certificate of delay, filing the record of appeal); failure renders the notice of appeal deemed withdrawn under rule 83/85
  • Timelines in the Court of Appeal Rules are indispensable and command obedience; they are not technicalities excusable under article 159 of the Constitution
  • This court has the power and discretion, on application or on its own motion, to deem a notice of appeal withdrawn under rule 83 of the 2010 Rules (now rule 85 of the 2022 Rules)

Court orders

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  1. 1.The two notices of appeal dated June 8, 2022 and lodged on June 10, 2022 in Mombasa high court Miscellaneous Suit No 207 of 2021 and Mombasa high court Miscellaneous Civil Suit No E234 of 2021 are deemed withdrawn
  2. 2.The applicant is awarded the costs of the application dated October 14, 2022

Authorities

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Legislation

  • Constitution of Kenya, 2010article 47
  • Constitution of Kenya, 2010article 48
  • Constitution of Kenya, 2010article 50(1)
  • Constitution of Kenya, 2010article 159
  • Constitution of Kenya, 2010article 10(2)(b)
  • Court of Appeal Rules, 2010rule 75
  • Court of Appeal Rules, 2010rule 82(1) and proviso, rule 82(2)
  • Court of Appeal Rules, 2010rule 83
  • Court of Appeal Rules, 2022rule 84
  • Court of Appeal Rules, 2022rule 85(1), 85(2)
  • Court of Appeal Rules, 2022rule 4
  • Appellate Jurisdiction Actsections 3A and 3B
  • Civil Procedure Actsection 75(1)
  • Arbitration Actsection 35

Cases cited (9)

  • Nyutu Agrovet Limited v Airtel Networks Kenya Limited and Chartered Institute of Arbitrators-Kenya Branch (Interested Party)
    (2019) eKLR
  • Mae Properties Ltd v Joseph Kibe and another
    [2017] eKLR
  • John Mutai Mwangi & 26 Others v Mwenja Ngure & 4 others
    [2016] eKLR
  • Charles Wanjohi Wathuku v Githinji Ngure and Another
    [2016] eKLR
  • Esther Anyango Ochieng v Transmara Sugar Company
    [2020] eKLR
  • Willy Kimutai Kitilit v Michael Kibet
    (2018) eKLR
  • Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri
    (2014) eKLR
  • Salama Beach Hotel Limited & 4 Others v Kenyariri & Associated Advocates & 4 others
    (2016) eKLR
  • Joyce Bochere Nyamweya v Jemima Nyaboke Nyamweya & another
    [2016] eKLR
Jurisdiction invoked
Rule 83 of the Court of Appeal Rules, 2010 (now rule 85 of the Court of Appeal Rules, 2022) - power to deem a notice of appeal withdrawn where an appeal is not instituted within the appointed time

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gamma Villa Limited v Kenya Ports Authority (Civil Application E068 of 2022) [2023] KECA 921 (KLR)", Case Analysis (2023). Civil Application (as stated in judgment: notice of motion dated October 14, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/921/eng@2023-07-28

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