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Court of AppealPartially AllowedCivil Appeal (Application) Nai 151 of 2005

AMERICAN LIFE INSURANCE COMPANY (K) LIMITED v PRISCILLA WANJIKU KAMUNYA & another [2007] KECA 11 (KLR)

Court of Appeal of Kenya
6 July 2007
EGE. M. GithinjiJOJ. W. Onyango OtienoWDW. S. Deverell
757 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that failing to file an appeal within 60 days of lodging a notice of appeal means the notice is deemed withdrawn and can be struck out.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on an application under rules 80 and 82 of the Court of Appeal Rules to strike out a notice of appeal. The applicant, American Life Insurance Company (K) Limited, had been a third party in Nairobi HCCC No. 3684 of 1991 (Francis Njenga Mbugua v Priscilla Wanjiku Kamunya), a road traffic accident claim. On 26th October 1998 the High Court (Angáwa J) dismissed the defendant's indemnity claim against her insurers on the ground that the commercial vehicle policy did not cover the plaintiff, who was being carried in the course of his employment, while entering judgment for the plaintiff against the defendant. The defendant lodged a notice of appeal on 5th November 1998 against the dismissal of her claim against the insurer, and applied for certified proceedings two days later, but never instituted the appeal. The applicant's advocates reminded her counsel three times in 2001 and again in May 2004; there was no response, no replying affidavit, and no attendance at the hearing. The Court of Appeal held that under rule 81(1) the appeal should have been filed within 60 days of lodging the notice (excluding certified typing time), and that under rule 82(a) failure to do so meant the 1st respondent was deemed to have withdrawn her notice. The application was allowed, the notice of appeal dated 4th November 1998 and lodged on 5th November 1998 was struck out from the Register, and costs were awarded to the applicant. The ruling binds subordinate courts and the High Court on the operation of the deeming provision in rule 82(a).

Questions the Court framed

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

  1. 1.Whether the 1st respondent failed to institute her appeal within the time prescribed by rule 81(1) of the Court of Appeal Rules and was thereby deemed to have withdrawn her notice of appeal under rule 82(a)
  2. 2.Whether the notice of appeal lodged on 5th November 1998 should be struck out for inordinate and unexplained delay

Key legal issues

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01

Effect of failure to institute an appeal within the time prescribed by rule 81(1)

Holding

The 1st respondent, having filed no appeal within 60 days of lodging the notice of appeal (excluding certified typing time), was deemed to have withdrawn her notice of appeal under rule 82(a).

Reasoning

The notice of appeal was lodged on 5th November 1998. The application to strike out was filed nearly seven years later. Despite three reminders by the applicant's advocates in 2001 and further correspondence in 2004, the 1st respondent's advocates took no steps to institute the appeal, filed no replying affidavit and did not attend the hearing. The court concluded the appeal would never be filed and the deeming provision applied.

p. 2

Legal principles established

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  • Under rule 82(a) of the Court of Appeal Rules, 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, and the notice is liable to be struck out on the application of an affected party.

Court orders

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  1. 1.That the notice of appeal dated 4th November 1998 and lodged on 5th November 1998 be struck out from the Register
  2. 2.That the 1st respondent, having been deemed to have withdrawn the notice of appeal, is precluded from prosecuting the intended appeal
  3. 3.That costs of the application be awarded to the applicant

The bench

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

EG
majority
JO
majority
WD
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 3684 of 1991
Jurisdiction invoked
Rules 80 and 82 of the Court of Appeal Rules (inherent appellate jurisdiction over notices of appeal under the Court of Appeal Rules)

Relief refused

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Indulgence or extension of time to allow the 1st respondent to file the intended appeal

No appeal had been filed within the prescribed period, no replying affidavit was filed, no appearance made, and the court inferred she did not intend to appeal

p. 2

Costs

Costs of the application to the applicant (American Life Insurance Company (K) Limited).

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.

By rule 81(1) of the Rules, Priscilla was required to file the appeal within 60 days of the date when the notice of appeal was lodged excluding such time as may be certified by the Registrar of the superior court as having been required for the preparation and delivery of a copy of proceedings
p. 2Time for instituting an appeal under rule 81(1)
It is evident from the foregoing that Prisicilla has not lodged an appeal within the time prescribed by the Rules. It is apparent from the long period of inaction that she does not now intend to file any.
p. 2Inordinate and unexplained delay; inference of abandonment
The intended appellant (Priscilla) having been deemed to have withdrawn the notice of appeal we order that the notice of appeal dated 4th November, 1998 and lodged on 5th November, 1998 be struck out from the Register.
p. 2Final orders - striking out deemed-withdrawn notice of appeal

Issues in the judgment

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minor

Internal date discrepancy: the notice of appeal is described in the body as dated 26th October 1998 in the title and as dated 4th November 1998 in the final orders, while lodged on 5th November 1998.

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, "AMERICAN LIFE INSURANCE COMPANY (K) LIMITED v PRISCILLA WANJIKU KAMUNYA & another [2007] KECA 11 (KLR)", Case Analysis (2007). Civil Appeal (Application) Nai 151 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/11/eng@2007-07-06

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