GRACE WAKONYO THIONGO v GITAU TIRIA [2007] KECA 303 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal notice left dormant for nine years, confirming that unprosecuted appeals can be terminated for want of prosecution.
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 Notice of Appeal lodged on 30th November 1998 should be struck out for want of prosecution, no Record of Appeal having been filed after approximately nine years
Key legal issues
#Striking out a Notice of Appeal for want of prosecution
Where a party lodges a Notice of Appeal but fails to file the Record of Appeal for approximately nine years, the notice will be struck out.
The court found that despite the lodging of the Notice of Appeal on 30th November 1998, no Record of Appeal had been filed, and roughly nine years had elapsed. The applicant moved by Notice of Motion dated 11th May 2004 to strike out the notice. The respondent, though duly served with the motion and hearing notice, did not appear. On those undisputed facts the court allowed the motion and struck out the Notice of Appeal, awarding costs to the applicant.
Legal principles established
#- An appeal that is not prosecuted - where no Record of Appeal is filed for an inordinate period after lodgement of the Notice of Appeal - may be struck out for want of prosecution.
Court orders
#- 1.The Notice of Appeal lodged on 30th November 1998 is struck out
- 2.The costs of the application to be paid by the respondent (Grace Wakonyo Thiongo) 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. Succession Cause No. 2386 of 1996
- Jurisdiction invoked
- Inherent appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules in respect of an intended appeal from the High Court (succession cause)
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.
This application by Motion dated 11th May, 2004 seeking the striking out of the Notice of Appeal lodged on 30th November, 1998 by the respondent Grace Wakonyo Thiongo is hereby allowed as the Record of Appeal has not been filed despite the passage of nine years or so since the lodging of the Notice of Appeal.
The costs of this application shall be paid by the respondent to the applicant.
Issues in the judgment
#The caption describes Gitau Tiria as Applicant and Grace Wakonyo Thiongo as Respondent, but the body of the ruling describes the application as striking out a Notice of Appeal lodged by 'the respondent Grace Wakonyo Thiongo', reversing the apparent party roles.
The judgment header is titled 'RULING OF THE COURT' and the cause is styled 'Civil Appli 55 of 2004', while the cover text refers to an intended appeal; the exact nature of the underlying appeal is not stated.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "GRACE WAKONYO THIONGO v GITAU TIRIA [2007] KECA 303 (KLR)", Case Analysis (2007). Civil Appeal (Application) No. 55 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/303/eng@2007-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.