Joseph Mwambaji Mwanzaka & 1 other v Jungo Vindi Dandasi
The bottom line
#Kenya's Court of Appeal refused to kill a stalled appeal immediately, but gave the appellant 45 days to file the record or the appeal dies automatically.
What this practically means
#Executive summary
#Key legal issues
#Operation of Rule 85(1) deeming provision
The rule is an inbuilt case-management device allowing the court, on its own motion or on application, to deem a notice of appeal withdrawn once the appeal is not instituted within the appointed time; however, the applicants must show the 60 days lapsed without the appeal being lodged and absent a compelling reason in the interests of justice
The court adopted its prior exposition of Rule 83 (now Rule 85(1)) as a case-management clean-up rule designed to prevent litigants from parking notices of appeal while enjoying interim relief. Once the expiry of the appointed time and non-institution are established, the court should ordinarily make the deeming order unless persuaded by a compelling reason in the interests of justice. Here, the respondent had complied with Rules 77 and 84, and no evidence showed the ELC had supplied the proceedings, so the failure was not purely his; the court nonetheless imposed a 45-day conditional deadline in deference to the applicants' concerns.
Attribution of delay where proceedings have not been supplied
Where the intended appellant has filed a notice of appeal and applied for proceedings within time, and there is no evidence the trial court supplied the proceedings or notified readiness for collection, the delay cannot be laid at his door; the time for preparation of the copy of proceedings is excluded in computing the 60 days
The court found no dispute that the respondent filed the notice within Rule 77(2) and applied for proceedings within the 30 days allowed under Rule 84. The applicants' assertion that certified proceedings had been supplied was unsupported by evidence. Because a certificate of delay can only issue after delivery of the copies, the respondent could not be faulted for the ELC's delay, though his failure to follow up was noted and addressed by the conditional 45-day order.
Legal principles established
#- A notice of appeal is deemed withdrawn under Rule 85(1) if the appeal is not instituted within the appointed time, and the court may so order on its own motion or on application by any party; but where the intended appellant has complied with Rules 77 and 84 and the court below has not supplied the proceedings, the time for preparation of proceedings is excluded and the notice does not automatically die
- An intended appellant who has filed a notice of appeal and applied for proceedings within the prescribed times must still diligently follow up with the court to expedite preparation of the record, failing which the notice will be deemed withdrawn on a conditional timetable fixed by the court
Court orders
#- 1.If the respondent has not already done so, he has 45 days from the date of delivery of the ruling to file and serve a compliant record of appeal
- 2.Failing which, without further ado, the respondent will be deemed to have withdrawn the Notice of Appeal dated 3rd October 2022 in accordance with rule 85(1) of the Court of Appeal Rules, 2022
- 3.No orders as to costs
- On appeal from
- Environment and Land Court at Mombasa
- Jurisdiction invoked
- Rule 85(1) of the Court of Appeal Rules, 2022 (previously Rule 83) - application to deem a notice of appeal as withdrawn
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mwambaji Mwanzaka & 1 other v Jungo Vindi Dandasi", Case Analysis (2024). Application dated 6th September 2023 (Court of Appeal, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/796/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.