Charles K. Wanguhu & 1 other v Cosmas Kiti & 46 Others
The bottom line
#Kenya's Court of Appeal struck out an appeal left dormant for over two years, warning that missing appeal deadlines without explanation can kill your case.
What this practically means
#Executive summary
#Key legal issues
#Whether a notice of appeal should be deemed withdrawn under Rule 83 after more than two years of inaction
Yes. The respondents filed a notice of appeal on 9th March, 2015 but took no steps for over two years and offered no explanation; the notice was therefore deemed withdrawn.
The Court found that the respondents went to slumber after filing the notice of appeal, made no application for extension of time, and never served a letter bespeaking proceedings. The affidavit in response relied only on information from advocates about proceedings becoming ready. With no explanation for the delay and no compliance with the Rules, the Court allowed the application under Rule 83 and deemed the notice withdrawn.
Whether the proviso to Rule 82(1) could extend the time for instituting the appeal
No. The respondents never applied in writing for a copy of the proceedings within 30 days of the decision and never served such an application on the respondents' counsel, so no certificate of delay could issue.
Rule 82(1) requires lodging the record of appeal within sixty days of the notice of appeal, with the proviso excluding time certified by the registrar only where an application for proceedings was made in accordance with subrule (2) within 30 days and served. Since no letter bespeaking proceedings was sent to the Deputy Registrar and copied to the applicants' counsel within thirty days, the proviso was unavailable and no certificate of delay could be issued.
Legal principles established
#- An appellant cannot benefit from the proviso to Rule 82(1) of the Court of Appeal Rules unless an application for a copy of the proceedings was made in writing, within 30 days of the decision, and served on the respondent.
- Where no steps are taken to prosecute an appeal, the Court may deem the notice of appeal withdrawn under Rule 83.
Court orders
#- 1.The application is allowed
- 2.The Notice of Appeal dated 6th March, 2015 is deemed as withdrawn
- 3.Costs of the application are awarded to the applicants
- On appeal from
- Environment & Land Court at Malindi
- HCCC No. 76 of 2006
- Jurisdiction invoked
- Rule 83 of the Court of Appeal Rules (application to strike out/deem a notice of appeal withdrawn)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles K. Wanguhu & 1 other v Cosmas Kiti & 46 Others", Case Analysis (2018). Civil Application No. 64 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/98/eng@2018-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.