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Court of AppealDismissedCivil Appeal 220 of 1997· [2009] KECA 271 (KLR)

John Muthomi Kanyoi v 1. Peter Kamande Mungai 2. James Kabii

Court of Appeal of Kenya
19 June 2009
952 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that an appellant who shows up to a hearing but refuses to argue their appeal has abandoned it, and it will be dismissed.

What this practically means

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Executive summary

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The appellant sued the two respondents in the High Court for damages for injuries sustained in a road traffic accident of 23rd July 1986, alleging that the 1st respondent, driving in the course of employment with the 2nd respondent, negligently caused a collision. By judgment dated 26th January 1993, Mwera J, relying on the evidence and judgment in a traffic case at Thika, found that the appellant's pick-up had crossed into the lorry's lane and dismissed the claim on liability with costs. The appellant appealed to the Court of Appeal on seven grounds. At the hearing, counsel revealed that the 2nd respondent had died in 1995; the appeal was adjourned several times for substitution of his legal representative, but neither party acted. On 15th June 2009 the Court declared the appeal against the 2nd respondent abated under Rule 96(2) of the Court of Appeal Rules, refused a further adjournment, and directed the appeal against the 1st respondent to proceed. Counsel for the appellant then stated he had no capacity to prosecute the appeal and would make no submissions. Observing that the Rules cater only for non-appearance (Rule 99(1)) and striking out (Rule 80), the Court held that in civil appellate proceedings, which are adversarial, an appellant present but declining to be heard is deemed to have abandoned the appeal, which is dismissed under the Court's inherent jurisdiction under Rule 1(3). The appeal against the 1st respondent was accordingly dismissed with costs to him. The binding proposition for lower courts is that non-prosecution by a present appellant justifies dismissal for abandonment under inherent jurisdiction.

Key legal issues

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01

Inherent jurisdiction to dismiss an unprosecuted appeal where the Rules are silent

Holding

The Court of Appeal Rules provide for dismissal where the appellant fails to appear (Rule 99(1)) and striking out where the appeal does not lie (Rule 80), but not where a present appellant declines to argue; in that gap the Court's inherent jurisdiction under Rule 1(3) applies and the appeal is dismissed as abandoned.

Reasoning

The Rules only cover non-appearance and procedural defects. Civil appellate proceedings are adversarial, so the Court is under no obligation to decide the merits of an appeal its own appellant declines to argue. Equity and the Court's inherent powers fill the lacuna: opting not to be heard is treated as abandonment, with dismissal as the consequence.

p. 2
02

Abatement of appeal against a deceased respondent

Holding

Where a respondent dies and no legal representative is joined despite repeated adjournments to allow the parties to act, the appeal against that respondent abates under Rule 96(2) of the Court of Appeal Rules.

Reasoning

The 2nd respondent died in 1995. The appeal was adjourned on several occasions to permit verification of the death and substitution of his legal representative, but neither party took any action. The Court therefore declared the appeal against him abated under Rule 96(2) and proceeded only against the 1st respondent.

p. 2

Legal principles established

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  • Where an appellant or his advocate is present at the hearing of an appeal but opts not to be heard in support of it, the appeal is deemed abandoned and must be dismissed under the Court's inherent jurisdiction
  • Appellate civil proceedings are adversarial; the Court has no duty to deal with the merits of an appeal that has not been prosecuted

Court orders

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  1. 1.The appeal against the 2nd respondent was declared to have abated under Rule 96(2) of the Court of Appeal Rules
  2. 2.The appeal against the 1st respondent is deemed abandoned and dismissed under the Court's inherent jurisdiction under Rule 1(3) of the Court of Appeal Rules
  3. 3.Costs of the appeal awarded to the 1st respondent
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1802 of 1987
Jurisdiction invoked
Appeal to the Court of Appeal under the Court of Appeal Rules (Rule 1(3) invoked for the Court's inherent jurisdiction in dismissing the appeal)

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, "John Muthomi Kanyoi v 1. Peter Kamande Mungai 2. James Kabii", Case Analysis (2009). Civil Appeal 220 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/271/eng@2009-06-19

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