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Court of AppealDismissedNot stated in the judgment

Paul N. Kanyi & another v George Mbugua Njoroge & another [2002] KECA 130 (KLR)

Court of Appeal of Kenya
21 June 2002
450 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A filed notice of appeal in Kenya stays valid until a court formally withdraws it, so you cannot just file a replacement.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi, delivered by Kwach JA on 21st June, 2002, on a notice of motion under rule 4 of the Court of Appeal Rules in which Paul Kanyi and Paul Mwangi sought an extension of time to file a Notice of Appeal against a decision given by Sheikh Amin J in Nairobi on 16th July, 2001. The applicants had lodged a Notice of Appeal on 26th July, 2001 but had taken no steps to institute an appeal. Their explanation, deponed to by their advocate Mr Tiego, was that they had inadvertently omitted the name of the second respondent from the notice although he was likely to be affected by the judgment; counsel conceded that the notice was therefore defective. The motion, however, contained no prayer that the notice be deemed withdrawn under rule 82 of the Rules. Counsel argued instead that, because no appeal had been instituted within the appointed time, the notice was deemed withdrawn by operation of rule 82. The court rejected that submission as misconceived, restating its settled position that a notice of appeal cannot be deemed withdrawn under rule 82 except with the order of the Court. The notice of 26th July, 2001 therefore remained alive and well, and for as long as it was extant there was no room for an order for filing a second notice. The application was dismissed with costs assessed at Shs 5,000/-, payable to the first respondent, George Njoroge, within fourteen days and, in default, execution to issue; the second respondent, though served, was denied costs as he had not appeared.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether a Notice of Appeal under which no appeal has been instituted within the appointed time is deemed to have been withdrawn under rule 82 of the Court of Appeal Rules without a specific order of the Court.
  2. 2.Whether, the Notice of Appeal filed on 26th July, 2001 remaining extant, the applicants could be granted an extension of time to file a second Notice of Appeal.

Key legal issues

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01

Whether a Notice of Appeal is deemed withdrawn under rule 82 of the Rules where the appellant fails to institute the appeal within the appointed time.

Holding

No. Deemed withdrawal under rule 82 occurs only by an order of the Court; the applicants' failure to institute an appeal did not extinguish the notice, and the contrary submission was rejected as misconceived.

Reasoning

The court rested on its settled jurisprudence, noting that it had stated in a number of decisions that a notice of appeal cannot be deemed withdrawn under rule 82 except with the order of the Court. Because the motion carried no prayer for such a deeming order, the notice of 26th July, 2001 survived notwithstanding the conceded defect of omitting the second respondent's name.

p. 2
02

Whether an extension of time could be granted to enable the applicants to file a second Notice of Appeal.

Holding

No. So long as the existing Notice of Appeal remains extant, there is no room for an order for filing a second notice; the application therefore had to fail.

Reasoning

The applicants conceded the notice was defective because it omitted the second respondent, but they neither sought nor obtained an order deeming it withdrawn under rule 82. With the original notice still alive on the record, the jurisdiction to permit a second notice was unavailable, and the motion was dismissed with costs assessed at Shs 5,000/-.

p. 3

Legal principles established

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  • A notice of appeal cannot be deemed to have been withdrawn under rule 82 of the Court of Appeal Rules except by an order of the Court; the mere failure to institute an appeal within the appointed time does not extinguish the notice.
  • For as long as an extant Notice of Appeal remains on record, a court has no power to order the filing of a second Notice of Appeal, and extension of time for that purpose is unavailable.

Court orders

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  1. 1.The application for extension of time to file a Notice of Appeal dismissed.
  2. 2.Costs of the application assessed at Shs 5,000/- and awarded to the first respondent, George Njoroge, to be paid by the applicants within 14 days, and in default execution to issue.
  3. 3.The second respondent denied any costs, he not having appeared though served.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (application for extension of time to file a Notice of Appeal)

Relief refused

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Extension of time to file a (second) Notice of Appeal.

The Notice of Appeal filed on 26th July, 2001 was never withdrawn by order of the Court and remained extant, leaving no room for an order permitting a second notice.

p. 3

An order that the Notice of Appeal dated 26th July, 2001 be deemed withdrawn under rule 82 of the Rules.

No such prayer was made in the motion, and counsel's submission that the notice was deemed withdrawn by operation of law upon failure to institute the appeal was rejected as misconceived.

p. 2

Costs

The application was dismissed with costs assessed at Shs 5,000/-, to be paid by the applicants to the first respondent, George Njoroge, within 14 days from the date of the ruling, and in default execution to issue; the second respondent, having not appeared though served, was not entitled to any costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

this Court has stated in a number of decisions that a notice of appeal cannot be deemed to have been withdrawn under rule 82 of the Rules
p. 2Withdrawal of a notice of appeal under rule 82 requires an order of the Court
the Notice of Appeal filed on 26th July, 2001 is still alive and well and as long as it is still extant, there is no room for making an order for filing a second Notice of Appeal
p. 3An extant notice of appeal bars an order for filing a second notice
For this reason, this application must fail, and it is hereby dismissed with costs assessed at Shs 5, 000/-, to be paid by the applicants to the first respondent, George Njoroge , within 14 days from today, and in default execution to issue.
p. 3Final orders - dismissal and assessed costs
The second respondent is not entitled to any costs as he has not appeared though served.
p. 3Costs - served but absent party denied costs

Issues in the judgment

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minor

The second respondent is referred to throughout but is never named in the judgment; the case title and the parties list therefore use a placeholder for that party, and the title is reconstructed from the named parties.

minor

The passage stating the exception to rule 82 deeming is garbled in the source text (apparent OCR corruption); it appears to read 'except with the order of the Court. The position in this case therefore is that'. Verbatim quotes have accordingly been drawn only from clean portions of the text.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Paul N. Kanyi & another v George Mbugua Njoroge & another [2002] KECA 130 (KLR)", Case Analysis (2002). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/130/eng@2002-06-21

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