John Kamakia Nthatu v Festus Kithinji Njagi [2019] KEELC 2302 (KLR)
The bottom line
#A Kenyan court refused to reinstate a land appeal because the appellant only filed a Notice of Appeal, never a Memorandum of Appeal — so no appeal actually existed.
What this practically means
#Executive summary
#Key legal issues
#Whether a Notice of Appeal constitutes an appeal for purposes of reinstatement
A Notice of Appeal is not an appeal in this court; without a Memorandum of Appeal there is nothing on record that can be reinstated
The court distinguished the Court of Appeal, where an appeal is initiated by a Notice of Appeal, from the High Court, where Order 42 Rule 1 of the Civil Procedure Rules requires a Memorandum of Appeal. Since the applicant filed only a Notice of Appeal on 6th April, 2018 and took no further step, the court found no appeal existed and the Notice was of no consequence.
Whether the court should exercise its discretion to set aside the dismissal
The discretion could not be exercised because no appeal existed to reinstate; the applicant was also culpably indolent, ignoring the court's notices and directions
The applicant and his advocate failed to attend the directions hearing of 24th July, 2018 despite notice by registered post, and further ignored the court's order of 9th July, 2019 to file written submissions. The court declined to aid an indolent litigant and dismissed the application with costs to the respondent.
Legal principles established
#- A Notice of Appeal does not constitute an appeal in the High Court/ELC; an appeal to the High Court from a subordinate court is deemed filed only upon filing a Memorandum of Appeal under Order 42 Rule 1 of the Civil Procedure Rules
Court orders
#- 1.The application dated 4th February, 2019 is dismissed
- 2.Costs are awarded to Festus Kithinji Njagi, the intended respondent
- On appeal from
- Principal Magistrates Court, Marimanti
- E.L.C. No. 45 of 2017
- Jurisdiction invoked
- Sections 80 and 3A of the Civil Procedure Act and Order 51 and Order 12 Rule 7 of the Civil Procedure Rules (inherent power to set aside dismissal orders); appeal jurisdiction under Section 79G of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kamakia Nthatu v Festus Kithinji Njagi [2019] KEELC 2302 (KLR)", Case Analysis (2019). Chuka ELC Civil Appeal Case No. 04 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2302/eng@2019-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.