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Court of AppealPartially AllowedNotice of Motion dated 19th February 2024 (Court of Appeal, Nairobi); appeal from High Court HCCA No. 75 of 2016· [2024] KECA 1158 (KLR)

Kenya Power & Lighting Company Limited v Associated Warehousing Company Limited (Civil Application E008 of 2024) [2024] KECA 1158 (KLR)

Court of Appeal of Kenya
20 September 2024
SKS. GATEMBU KAIRUKLDR. K. I. LAIBUTAGOG. V. ODUNGA
1,052 words in judgment
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The bottom line

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The Court of Appeal killed a dormant appeal: after nearly three years of inaction, the notice of appeal was deemed withdrawn and the拖延 party ordered to pay costs.

What this practically means

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Executive summary

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The respondent, aggrieved by the judgment of D. Chepkwony, J. dated 11th February 2021 in High Court HCCA No. 75 of 2016 at Mombasa, lodged a notice of appeal on 23rd February 2021 but took no steps to file the record of appeal. Almost three years later, the applicant moved the Court of Appeal by Notice of Motion dated 19th February 2024 under rules 82, 83 and 84 of the 2010 Rules (now rules 84, 85 and 86 of the 2022 Rules), supported by an affidavit of Anne Mulela, seeking to strike out the notice of appeal for inordinate, unexplained and prejudicial delay. The respondent opposed through an affidavit of its director, Nitichandra Pandya, contending that its counsel had been actively preparing the record but had never been served with the court file, that requests for typed proceedings went unanswered, and that the record could not be filed without the typed proceedings, judgment and decree; it also asserted that the appeal raised triable issues and that no prejudice had been caused since it continued paying electricity bills. Counsel for the respondent cited no authorities. The Court found the delay of almost three years inordinate and unexplained, and a failure to comply with the mandatory requirements of rule 84. Relying on rule 85 of the 2022 Rules and its own precedent in Mae Properties Limited v. Joseph Kibe, the Court deemed the respondent's notice of appeal dated 23rd February 2021 withdrawn and ordered the respondent to bear the costs of the Motion. The judgment was delivered at Nairobi on 20th September 2024 by a unanimous bench of Gatembu Kairu, Laibuta and Odunga, JJ.A.

Key legal issues

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Consequence of failure to lodge the record of appeal within the prescribed 60 days after a notice of appeal

Holding

The notice of appeal is deemed withdrawn under rule 85(1) of the Court of Appeal Rules, 2022, and the defaulting party is liable for costs; the Court's discretion in that regard is exercised in cases of unexplained, inordinate delay.

Reasoning

The respondent lodged its notice of appeal on 23rd February 2021 but took no steps to file the record of appeal for almost three years. The mandatory requirements of rule 84 were not met and no sufficient explanation was offered. Rule 85(1) deems such a notice withdrawn and allows the Court, on motion or its own initiative, to make such order. The discretion serves expedition of appellate justice, as applied in Mae Properties.

p. 3

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 under rule 85, and the Court may strike out or deem the notice withdrawn in cases of unexplained delay; the party in default is liable for costs.
  • The Court's discretion to strike out or deem withdrawn a notice of appeal for unexplained delay is grounded in the constitutional duty to ensure expedition in the administration of appellate justice.

Court orders

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  1. 1.The respondent's notice of appeal dated 23rd February 2021 is deemed to have been withdrawn pursuant to rule 85 of the Court of Appeal Rules, 2022
  2. 2.The costs of the applicant's Motion are borne by the respondent

Authorities

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Legislation

  • Court of Appeal Rules, 2010rules 82, 83, 84
  • Court of Appeal Rules, 2022rules 84, 85, 86

Cases cited (2)

  • Mae Properties Limited v. Joseph Kibe & Another
    [2017] eKLR
  • Martin Kabaya v. David Mungania Kiambi
    Nyeri Civil Application No. 12 of 2015 (Unreported)
On appeal from
High Court of Kenya at Mombasa
HCCA No. 75 of 2016
Jurisdiction invoked
Rules 82, 83 and 84 of the Court of Appeal Rules, 2010 (now rules 84, 85 and 86 of the Court of Appeal Rules, 2022)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kenya Power & Lighting Company Limited v Associated Warehousing Company Limited (Civil Application E008 of 2024) [2024] KECA 1158 (KLR)", Case Analysis (2024). Notice of Motion dated 19th February 2024 (Court of Appeal, Nairobi); appeal from High Court HCCA No. 75 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1158/eng@2024-09-20

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