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Court of AppealPartially AllowedCivil Application Nai. 240 of 2016 (ur)

Mae Properties Limited v Kibe & another (Civil Appeal 201 of 2016) [2017] KECA 238 (KLR)

Court of Appeal of Kenya
19 October 2017
PWP. N. WakiPKP. O. KiageKMK. M'Inoti
2,001 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a notice of appeal automatically dies if you don't file the full appeal within 60 days — delays and missing court records won't save it.

What this practically means

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Executive summary

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Mae Properties Limited moved the Court of Appeal under Rules 83 and 84 of the Court of Appeal Rules, 2010 to strike out or deem withdrawn a notice of appeal filed by the respondents on 26th May 2015 against a ruling of Gikonyo, J delivered on 18th May 2015. The respondents had failed to institute the appeal within the 60 days appointed by Rule 82(1), and none had been lodged even 15 months later. The respondents resisted, arguing the application was out of time under the proviso to Rule 84 and that they had been delayed by the non-availability of certified proceedings, invoking Article 159 of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act. The Court, in a unanimous judgment delivered at Nairobi on 19th October 2017, held that Rule 83 prescribes a mandatory, peremptory consequence: a party who fails to institute an appeal within 60 days is deemed to have withdrawn the notice, the deeming setting in the moment the time lapses. A notice of appeal dies a natural death after 60 days unless revived by a Rule 4 extension or the Rule 82(1) proviso. The court may make the deeming order suo motu or on a simple application showing only the lapse of time and non-institution. Non-availability of proceedings did not excuse the respondents, who had made no serious follow-up efforts and had not invoked Rule 87. The court expressly reserved the question of the 30-day limitation in the proviso to Rule 84. The application was allowed with costs to the applicant.

Questions the Court framed

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

  1. 1.Whether the respondents' notice of appeal filed on 26th May 2015 should be deemed withdrawn or struck out under Rules 83 and 84 of the Court of Appeal Rules, 2010, having failed to institute the appeal within 60 days
  2. 2.Whether the 30-day period in the proviso to Rule 84 bars a late application under Rule 83
  3. 3.Whether the non-availability of typed proceedings excuses failure to lodge the appeal within the appointed time

Key legal issues

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01

Effect of failure to institute an appeal within 60 days of lodging a notice of appeal

Holding

The party is deemed to have withdrawn the notice of appeal under Rule 83; the deeming consequence is mandatory and automatic on expiry of time.

Reasoning

Rule 83 prescribes the legal consequence of non-institution in mandatory, peremptory terms: the offending party shall be deemed to have withdrawn the appeal. The rule is a practical device to rid the registry of speculative notices filed in knee-jerk reaction or in holding mode. A notice of appeal dies a natural death after 60 days unless time is extended under Rule 4 or days are excluded under the proviso to Rule 82(1).

p. 3
02

Whether non-availability of certified proceedings excuses the default

Holding

It does not. The excuse does not lie absent evidence of serious efforts to obtain the proceedings or to otherwise pursue lodgment of the appeal.

Reasoning

The respondents only wrote a letter bespeaking proceedings and did nothing further. Rule 87 provided a mechanism for excluding unavailable proceedings which they did not invoke. The court held that such cavalier and indolent parties are precisely those Rule 83 was intended to weed out by the deeming provision.

p. 4
03

Effect of the 30-day period in the proviso to Rule 84 on a late striking-out application

Holding

Left open; the court declined to pronounce on it as this matter did not turn on that point.

Reasoning

The court held that since the power under Rule 83 could be exercised, including suo motu, it need not enter a discourse on the effect of the 30-day period prescribed in the proviso to Rule 84, reserving the question for a matter that turns precisely on it.

p. 4

Legal principles established

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  • A notice of appeal lapses automatically upon expiry of the 60 days appointed under Rule 82(1), and the court may formally order it deemed withdrawn under Rule 83; the deeming takes effect the moment the appointed time lapses.
  • A party seeking the Rule 83 deeming order need only show that the 60 days have elapsed without the appeal being lodged; the court should then make the order unless a compelling reason in the interests of justice exists.
  • Non-availability of proceedings does not excuse failure to lodge an appeal within 60 days; a party should invoke the proviso to Rule 82(1) or seek an extension under Rule 4, and a party in default under Rule 83 is liable for costs.

Court orders

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  1. 1.The respondents' notice of appeal dated 25th May 2015 and filed on 26th May 2015 is deemed withdrawn under Rule 83
  2. 2.The respondents shall bear the costs of the application, to be taxed if not agreed

The bench

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

PW
majority
PK
majority
KM
majority
On appeal from
High Court of Kenya
Jurisdiction invoked
Rules 83 and 84 of the Court of Appeal Rules, 2010 (and the Court's inherent powers under sections 3A and 3B of the Appellate Jurisdiction Act invoked by the parties)

Relief refused

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Respondents' plea that non-availability of proceedings excused their failure to lodge the appeal

No evidence of any serious attempt to follow up the proceedings; indolence does not excuse the express legal consequence of default under Rule 83

p. 4

Costs

The respondents shall bear the costs of the application, to be taxed if not agreed.

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.

The inevitable outcome of this application is that it succeeds and we grant it. The respondents shall bear the costs thereof, to be taxed if not agreed.
p. 4Final orders - application allowed, notice deemed withdrawn, costs to applicant
a notice of appeal dies a natural death after the expiry of 60 days unless its life should be sooner extended by lodgment of the appeal within 60 literal days
p. 3Automatic lapse of notice of appeal under Rule 83
It seems to us that the deeming sets in the moment the appointed time lapses.
p. 3Mandatory, peremptory operation of the deeming provision
And it is a power that the Court ought to use vigilantly and more robustly as a regular house-cleaning measure.
p. 3Court's suo motu power under Rule 83
A justice delayed is a justice denied.
p. 4Expeditious disposal of judicial proceedings

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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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, "Mae Properties Limited v Kibe & another (Civil Appeal 201 of 2016) [2017] KECA 238 (KLR)", Case Analysis (2017). Civil Application Nai. 240 of 2016 (ur). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/238/eng@2017-10-19

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