Krishen Dev Handa v Fatuma Mohamed [1986] KECA 57 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a four-year-old notice of appeal and cancelled a stay because the appellant took no steps to prosecute the appeal or furnish ordered security.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of appeal filed on November 4, 1982 should be struck out for failure to institute the appeal within the prescribed time under rule 82(a)
- 2.Whether the notice of appeal was served on the applicant as required by rule 76(1)
- 3.Whether the stay of execution granted on April 10, 1984 in Civil Application No Nai 22 of 1983 should be discharged for failure to furnish the ordered security
Key legal issues
#Striking out a notice of appeal for want of prosecution
The notice of appeal was struck out because over four years had passed since judgment with no steps taken to prosecute the appeal and no application for extension of time.
Judgment was entered on November 2, 1982; proceedings were ready for collection on July 11, 1985; the respondent obtained no copies, filed no appeal and made no application for extension of time. Rule 82(a) deems the notice withdrawn where an appeal is not instituted in time. The court also found neither the intended appellant nor her advocate had any interest in pursuing the appeal, warranting striking out the notice.
Non-compliance with conditions of stay of execution
The stay granted on condition that satisfactory security of Kshs 410,000 be furnished was vacated because no security had been provided for two and a half years.
The stay in Civil Application No Nai 22 of 1983 was conditional on furnishing security approved by the Deputy Registrar. No evidence of compliance could be located on the record, while the respondent continued in occupation without paying rent, accumulating arrears of about Kshs 650,000 to the applicant's detriment. The court therefore discharged the stay.
Service of the notice of appeal
There was no evidence the applicant was served with the notice of appeal, breaching the mandatory requirement of rule 76(1).
Rule 76(1) mandates service of the notice of appeal on all persons directly affected by the appeal, as illustrated by the unreported decision in Taracisio Githaiga Ruithubo vs Mbuthia Nyingi. The affidavits disclosed no service on the applicant, an independent ground supporting striking out the notice.
Legal principles established
#- 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 of appeal unless the court otherwise orders, justifying striking out the notice.
- All persons directly affected by an appeal must be served with the notice of appeal under rule 76(1).
- Where a party or their advocate fails to attend a duly noticed hearing, the Court of Appeal may proceed ex parte under rule 55(2).
Court orders
#- 1.The stay of execution previously granted by the Court of Appeal is vacated
- 2.The notice of appeal filed on November 4, 1982 is struck out
- 3.Costs of the application awarded to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- High Court Civil Case No 770 of 1981
- Jurisdiction invoked
- Rules 80 and 42 of the Court of Appeal Rules (application to strike out a notice of appeal); earlier stay granted under rule 5(2)(b)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstance, the stay of execution previously granted by this court is vacated and the notice of appeal is ordered to be struck out with costs to the respondent / applicant.
Rule 82(a) provide that if a party who has lodged a notice of appeal fails to institute an appeal wihtin the appointed time, he shall be deemed to have withdrawn his notice of appeal unless the court otherwise orders.
It is also mandatory under rule 76 (1) that all persons directly affected by the appeal must be served with the notice of appeal
neither the intended appellant nor her advocate have interest in pursuing the appeal
Issues in the judgment
#Party designations are inconsistently used: the motion is described as brought by the respondent and served on 'the applicant', yet Krishen Dev Handa is titled APPLICANT and Fatuma Mohamed RESPONDENT in the heading, and the closing orders award costs 'to the respondent / applicant'.
The earlier stay application is referred to both as Civil Application No Nai 22 of 1983 and No Nai 22 of 1985.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Krishen Dev Handa v Fatuma Mohamed [1986] KECA 57 (KLR)", Case Analysis (1986). Civil Application No Nai 121 of 1986. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/57/eng@1986-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.