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Court of AppealStruck OutCivil Application No. 372 of 2001

VICTORIA K. WILLS vs BURKHARD KOARTIS [2002] KECA 169 (KLR)

Court of Appeal
25 January 2002
240 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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Filing an appeal notice is not enough — Kenya's Court of Appeal struck out an appeal left idle for two years, leaving the judgment intact.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Mombasa delivered on 25th January 2002 by Gicheru, Lakha and O'Kubasu, JJ.A., in Civil Application No. 372 of 2001. Victoria K. Wills, the applicant, moved by notice of motion dated 22nd June 2001 to strike out a notice of appeal filed by Burkhard Koartis, the respondent, on 14th September 1999. The notice of appeal had been lodged in an intended appeal against the judgment and decree of the High Court of Kenya at Mombasa (Waki, J.) delivered on 3rd September 1999 in H.C.C.C. No. 579 of 1993. The applicant's ground was that no appeal had been filed within the prescribed time. The court observed that there was no application for copies of proceedings under rule 81, and that although it was said an application for extension of time had been made under rule 4, that application was not exhibited. Holding that it was not persuaded there was any reason why the notice of appeal should not be struck out, the court allowed the motion and struck out the notice of appeal with costs, including the costs of the motion. The intended appeal was thereby terminated at its threshold and the High Court judgment stands undisturbed; no authority was cited and the ruling is a unanimous judgment of the whole court. Its binding proposition is that a notice of appeal will be struck out where no appeal has been instituted in time, no rule 81 application for copies of proceedings exists, and the asserted rule 4 extension application is not exhibited before the court.

Questions the Court framed

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

  1. 1.Whether the notice of appeal filed on 14th September 1999 in the intended appeal against the High Court judgment delivered on 3rd September 1999 ought to be struck out on the ground that no appeal has been filed within the prescribed time.
  2. 2.Whether the absence of an application for copies of proceedings under rule 81, and the assertion of an unexhibited extension application under rule 4, afford any reason to retain the notice of appeal on the record.

Key legal issues

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01

Whether a notice of appeal ought to be struck out where no appeal has been filed within the prescribed time

Holding

Yes. The court struck out the notice of appeal filed on 14th September 1999 in the intended appeal against the judgment delivered on 3rd September 1999, because no appeal had been filed within the prescribed time and no application for copies of proceedings under rule 81 had been made.

Reasoning

The intended appeal targeted the judgment of the High Court (Waki, J.) delivered on 3rd September 1999. A notice of appeal was lodged on 14th September 1999, but no appeal was instituted within the prescribed period and there was no application for copies of proceedings under rule 81. The only suggested safeguard - an extension application under rule 4 - was asserted but not exhibited. The court therefore found no reason to keep the notice of appeal on the record and struck it out with costs, terminating the intended appeal at its threshold.

p. 1
02

Whether an unexhibited application for extension of time under rule 4 can preserve a notice of appeal from being struck out

Holding

No. The court treated the mere assertion that an extension application had been made under rule 4 as insufficient, since the application was not exhibited before it.

Reasoning

The court noted that although it was said an extension application had been made under rule 4, the application was not exhibited. Without the exhibited application, the court could not verify any pending extension request, and the absence of a rule 81 application for copies of proceedings reinforced the conclusion that no appeal was being prosecuted. The unexhibited assertion therefore afforded no reason to decline the strike-out, and the notice of appeal was struck out with costs.

p. 1

Legal principles established

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  • A notice of appeal will be struck out where no appeal has been filed within the prescribed time and no application for copies of proceedings under rule 81 has been made.
  • A bare assertion that an extension-of-time application has been made, without exhibiting the application before the court, provides no reason to retain a notice of appeal on the record.

Court orders

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  1. 1.The notice of motion dated 22nd June 2001 succeeds (is allowed).
  2. 2.The notice of appeal filed on 14th September 1999 is struck out with costs, including the costs of the motion.

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 579 of 1993
Jurisdiction invoked
The Court of Appeal's procedural jurisdiction over its own appellate process under the Court of Appeal Rules; the ruling proceeds by way of an application to strike out a notice of appeal where no appeal has been filed within the prescribed time, and references rule 81 (application for copies of proceedings) and rule 4 (extension of time).

Relief refused

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The respondent's intended appeal against the judgment and decree of the High Court of Kenya at Mombasa (Waki, J.) delivered on 3rd September 1999 in H.C.C.C. No. 579 of 1993

No appeal was filed within the prescribed time; there was no application for copies of proceedings under rule 81, and the alleged extension application under rule 4 was not exhibited, so the court found no reason to retain the notice of appeal.

p. 1

Costs

The notice of appeal was struck out with costs including the costs of the motion - that is, the costs of the application and of the motion were awarded to the applicant, Victoria K. Wills, against the respondent.

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.

The notice of motion dated 22nd June, 2001 succeeds. The notice of appeal filed on 14th September, 1999 is struck out with costs including the costs of the motion.
p. 1Final orders - motion allowed and notice of appeal struck out with costs
We are not persuaded that there is any reason why the notice of appeal should not be struck out.
p. 1Strike-out of a notice of appeal where no appeal has been filed within the prescribed time
Although it is said that an application for an extension has been made under rule 4, this is not exhibited.
p. 1Unexhibited extension application cannot save a notice of appeal
There is no application for copies of proceedings under rule 81.
p. 1Absence of a rule 81 application as a ground for striking out

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, "VICTORIA K. WILLS vs BURKHARD KOARTIS [2002] KECA 169 (KLR)", Case Analysis (2002). Civil Application No. 372 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/169/eng@2002-01-25

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