AMERICAN LIFE INSURANCE COMPANY (K) LIMITED v PRISCILLA WANJIKU KAMUNYA & ANOTHER [2007] KECA 251 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a seven-year-old dormant notice of appeal, confirming that not filing an appeal within 60 days means abandoning it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st respondent failed to institute her intended appeal within the time prescribed by rule 81(1) of the Court of Appeal Rules.
- 2.Whether, by operation of rule 82(a) of the Court of Appeal Rules, the 1st respondent is deemed to have withdrawn her notice of appeal, warranting its striking out on the ground of inordinate and unexplained delay.
Key legal issues
#Whether the 1st respondent's failure to institute her appeal within the prescribed time deemed her to have withdrawn her notice of appeal under rule 82(a).
Yes. Having failed to lodge the appeal within the time prescribed by the Rules, the 1st respondent was deemed to have withdrawn her notice of appeal, and the notice was struck out from the Register.
The Court applied rule 82(a), which deems a party who fails to institute an appeal within the appointed time to have withdrawn the notice of appeal. Rule 81(1) prescribed 60 days from lodgment of the notice, excluding certified time for preparing the proceedings. Although the 1st respondent's advocates promptly applied for a copy of the proceedings and judgment, no appeal was ever filed. Over nearly seven years the applicant's advocates repeatedly reminded them and threatened the striking-out application, yet no action followed, no replying affidavit was filed and counsel did not attend the hearing. The long inaction evidenced no intention to appeal.
Whether the delay in instituting the appeal was inordinate and unexplained, justifying striking out the notice of appeal.
Yes. The application was filed nearly seven years after the notice of appeal was lodged, no appeal had been instituted, and the 1st respondent offered no explanation or opposition; the delay was inordinate and unexplained.
The notice of appeal was lodged on 5th November 1998 against the part of the High Court decision dismissing the 1st respondent's indemnity claim against her insurers. Despite three reminders in 2001, two requests by her advocates for forbearance, and a letter of 28th May 2004 signalling the striking-out application, her advocates took no step to institute the appeal. The prolonged inaction demonstrated that she did not intend to file any appeal, and her advocates neither filed a replying affidavit nor attended the hearing. The notice was struck out with costs to the applicant.
Legal principles established
#- A party who lodges a notice of appeal but fails to institute the appeal within the appointed time is, by operation of rule 82(a) of the Court of Appeal Rules, deemed to have withdrawn the notice of appeal, and the notice is liable to be struck out from the Register on that basis.
- The appointed time for instituting an appeal is 60 days from the lodgment of the notice of appeal, excluding such time as the Registrar of the superior court certifies as required for the preparation and delivery of a copy of proceedings where the intended appellant applied for the copy within the stipulated time.
Court orders
#- 1.The notice of appeal dated 4th November, 1998 and lodged on 5th November, 1998 struck out from the Register.
- 2.Costs of the application to the applicant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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 (application to strike out a notice of appeal)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, the application is allowed. 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.
By rule 82(a) of the Rules, if a party who has lodged a notice of appeal fails to institute an appeal within the appointed time he shall be deemed to have withdrawn his notice of appeal.
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.
The present application was filed nearly seven years after the notice of appeal was lodged.
Issues in the judgment
#The cause title describes the notice of appeal as dated 26th October, 1998 (which is the date of the High Court judgment), whereas the body of the ruling and the final order state that the notice of appeal was dated 4th November, 1998 and lodged on 5th November, 1998.
The 2nd respondent is styled 'FRANCIS NJENGA MBUGUA' in the cause title but 'Francis Njenga Mbogua' in the body of the ruling.
The 1st respondent's given name is misspelled as 'Prisicilla' in two passages, against the correct 'Priscilla' used elsewhere in the ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "AMERICAN LIFE INSURANCE COMPANY (K) LIMITED v PRISCILLA WANJIKU KAMUNYA & ANOTHER [2007] KECA 251 (KLR)", Case Analysis (2007). Civil Application 151 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/251/eng@2007-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.