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Court of AppealAllowedCivil Application No. Nai.284 of 2001

Meshack Omari Monyoro v David Kinyanjui & 2 others [2002] KECA 241 (KLR)

Court of Appeal of Kenya
8 February 2002
RKR.O. KwachPhilip Kiptoo TunoiP.K. TunoiSBS.E.O. Bosire
885 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out two notices of appeal filed by a losing party who sat on the appeal for years, confirming duplicate and dormant appeals will be terminated.

What this practically means

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Executive summary

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This was a ruling of the Court of Appeal at Nairobi (Kwach, Tunoi and Bosire JJ.A) on an application under rule 80 of the Court of Appeal Rules by Meshack Omari Monyoro, the successful plaintiff in High Court Civil Case No.5155 of 1992, in which he had been awarded Kshs.1,608,036 with costs and interest against the three respondents. The respondents had obtained a stay of execution pending intended appeal on 23rd October 1998 but had thereafter taken no steps to lodge a record of appeal. The applicant sought striking out of two notices of appeal, dated 5th June 1998 and 9th September 1998. The court held that the second notice was invalid because the respondents, represented throughout by one firm of advocates, had no right to file another notice of appeal while the first remained on record, and because it was filed out of time without leave. On the delay, the respondents' advocates attributed inaction to a misplaced file and non-receipt of a registry letter of 12th July 1999, but the court found that even after being served with the application they took no steps, demonstrating that they did not wish to pursue the appeal. The court inferred that the notices and the stay application were filed to delay payment of the decretal sum, the appeal being pursued by an insurance company in exercise of subrogation rights. The application was allowed: both notices of appeal were struck out, with costs to the applicant assessed at Kshs.8,000/=. The decision below was not disturbed; the effect was to terminate the respondents' intended appeal.

Questions the Court framed

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

  1. 1.Whether the second notice of appeal dated 9th September 1998 was valid, having been filed while the first notice of appeal was still on record and out of time without leave
  2. 2.Whether the respondents' inaction in pursuing the intended appeal justified striking out both notices of appeal

Key legal issues

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01

Validity of a second notice of appeal filed while the first was still on record

Holding

The second notice of appeal was invalid because the respondents had no right to file another notice of appeal while the first was still on record, and it was also filed out of time without leave.

Reasoning

The respondents were represented throughout by one firm of advocates, so there was no explanation for filing two notices of appeal. In the absence of evidence justifying the second notice, the court held it invalid, both as a duplicative filing and as an out-of-time filing made without leave.

p. 1
02

Whether the respondents' conduct showed abandonment of the intended appeal

Holding

The respondents' failure to take any steps to lodge a record of appeal, even after being served with the striking-out application, demonstrated that they did not wish to pursue the intended appeal, justifying striking out both notices.

Reasoning

Since obtaining a stay of execution in October 1998, the respondents took no step to lodge a record of appeal. Their advocates attributed the delay to a misplaced file and non-receipt of a registry letter, but the court found that even service of the application itself, which referenced the letter, did not prompt them to act. The court inferred the notices and stay application were filed to delay payment of the decretal sum, the appeal being driven by an insurance company exercising subrogation rights.

p. 2

Legal principles established

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  • A party may not file a second notice of appeal while the first notice of appeal is still on record; such a second notice is invalid and liable to be struck out.
  • A notice of appeal filed out of time without leave of the Court is invalid.

Court orders

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  1. 1.The notices of appeal dated 5th June 1998 and 9th September 1998 be and are hereby struck out
  2. 2.The applicant shall have the costs of the application assessed at Kshs.8,000/=

The bench

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

RK
majority
Philip Kiptoo Tunoi
majority
SB
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 5155 of 1992
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (application to strike out notices of appeal)

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.

it is invalid and liable to be struck out as the respondents had no right of filing another notice of appeal while the first one was still on record
p. 1Duplicate notice of appeal
Besides the second notice of appeal having been filed out of time without leave it is invalid.
p. 1Out-of-time notice without leave
Accordingly we order that the notices of appeal dated 5th June 1998, and 9th September, 1998, be and are hereby struck out. The applicant shall have the costs of the application assessed at Kshs.8,000/=.
p. 2Final orders

Issues in the judgment

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minor

The judgment refers to the suit as both High Court Civil Case No.5755 of 1992 and H.C.C.C. NO.5155 OF 1992, an internal inconsistency in the case number.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Meshack Omari Monyoro v David Kinyanjui & 2 others [2002] KECA 241 (KLR)", Case Analysis (2002). Civil Application No. Nai.284 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/241/eng@2002-02-08

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