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Court of AppealAllowedCivil Application No. NAI. 13 of 2002· [2002] KECA 262 (KLR)

Philip Wachira Mwaniki v Blueshield Insurance Co. Ltd [2002] KECA 262 (KLR)

Court of Appeal
5 July 2002
JGJ. E. GicheruEOE. O'KubasuMKM. Ole Keiwua
450 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an insurer's appeal because it sat on it for over two years, confirming that missing documents cannot excuse inaction.

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 (Gicheru, O'Kubasu and Keiwua, JJ.A.) on a Notice of Motion brought by Philip Wachira Mwaniki, the applicant, under rule 80 of the Court of Appeal Rules, seeking to strike out a Notice of Appeal filed by Blueshield Insurance Co. Ltd, the respondent. The notice, dated 7th May 1999 and lodged in the superior court on 12th May 1999, was lodged in an intended appeal against the judgment of the High Court at Nairobi (Mbogholi J) of 6th May 1999 in H.C.C.C. No. 1799 of 1991. The applicant complained that since lodging the notice the respondent had deliberately failed to institute its intended appeal, delaying the conclusion of the litigation to his detriment. The respondent explained that it collected the proceedings and judgment on 8th May 2001 without certified copies of certain documentary exhibits, which it alleged had been collected by the applicant's then counsel, Mr. F. N. Wamalwa, and that efforts to retrieve them failed. The court held that the respondent had nonetheless never applied to a judge or registrar under rule 85(3) of the Rules for directions that the missing exhibits be excluded from the record of appeal. That lapse was inexcusable and disentitled the respondent from relying on the missing exhibits to explain its failure to institute the appeal within the prescribed sixty days - a period in excess of two years. The application was granted: the Notice of Appeal was struck out with costs to the applicant, extinguishing the intended appeal. No authorities were cited; the ruling turns on the Court of Appeal Rules and the duty of an intending appellant to pursue the institution of an appeal diligently or lose the right to appeal.

Key legal issues

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01

Whether failure to invoke rule 85(3) for directions on missing exhibits disentitles a party from relying on those exhibits to explain delay in instituting an appeal.

Holding

Yes. The respondent collected the proceedings and judgment but they lacked certified copies of certain documentary exhibits, allegedly retrieved by the applicant's then counsel. The respondent never applied to a judge or registrar for directions that the missing exhibits be excluded from the record of appeal. That omission was inexcusable and barred the respondent from relying on the missing exhibits to explain its failure to lodge the record within the prescribed sixty days.

Reasoning

The respondent collected the proceedings and judgment on 8th May 2001 but they lacked certified copies of certain documentary exhibits, which it alleged had been taken by the applicant's then counsel, Mr. F. N. Wamalwa. Rather than move under rule 85(3) for directions that the missing exhibits be excluded from the record of appeal, the respondent did nothing. The court held that this omission was inexcusable and barred the respondent from relying on the missing exhibits to explain its failure to institute the appeal within the prescribed sixty-day period.

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Whether the Notice of Appeal should be struck out for the respondent's failure to institute the intended appeal.

Holding

Yes. With the rule 85(3) explanation foreclosed, the respondent had no answer to the complaint that, more than two years after lodging its Notice of Appeal on 12th May 1999, it had still not instituted the intended appeal against the judgment of 6th May 1999. The application to strike out was granted and the Notice of Appeal was struck out with costs to the applicant.

Reasoning

With the rule 85(3) explanation foreclosed, the respondent had no answer to the applicant's complaint that, more than two years after lodging its Notice of Appeal on 12th May 1999, it had still not instituted the intended appeal against the High Court judgment of 6th May 1999. The court characterized the application to strike out as irresistible, granted it, and struck out the Notice of Appeal with costs to the applicant, thereby extinguishing the respondent's intended appeal.

p. 2

Legal principles established

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  • An intending appellant who fails to apply to a judge or registrar of the superior court for directions under rule 85(3) of the Court of Appeal Rules for the exclusion of missing documentary exhibits from the record of appeal cannot rely on the absence of those exhibits to excuse failure to institute the appeal within the prescribed period; the lapse is inexcusable and disentitles the party.
  • Where an intending appellant has, without excusable explanation, failed to institute an appeal long after lodging the Notice of Appeal, the Court of Appeal will strike out the Notice of Appeal, with costs to the applicant.

Court orders

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  1. 1.The respondent's Notice of Appeal dated 7th May, 1999 and lodged in the superior court on 12th May, 1999 is struck out.
  2. 2.Costs of the application to the applicant.
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1799 of 1991
Jurisdiction invoked
Rule 80 of the Court of Appeal Rules (Notice of Motion to strike out a Notice of Appeal); rule 85(3) of the Rules also considered

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Philip Wachira Mwaniki v Blueshield Insurance Co. Ltd [2002] KECA 262 (KLR)", Case Analysis (2002). Civil Application No. NAI. 13 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/262/eng@2002-07-05

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