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Court of AppealAllowedCivil Application No. 24 of 2017

Bamburi Cement Ltd v Evanson Mwawasi Mwadime [2018] KECA 145 (KLR)

Court of Appeal
15 November 2018
712 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal declared an appeal abandoned after nine years of inaction, confirming that dormant appeal notices can be struck out.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Mombasa (Visram, Karanja and Koome, JJ.A) on a notice of motion filed on 11th May 2017 by Bamburi Cement Ltd under Rule 83 of the Court of Appeal Rules. The underlying suit, H.C.C.C No. 442 of 2000, in which Evanson Mwawasi Mwadime claimed terminal dues from Bamburi Cement Ltd, was dismissed by Sergon, J. on 26th February 2009. The respondent lodged a Notice of Appeal on 4th March 2009 and requested typed proceedings, but took no further step to institute the appeal; by the time of the application some eight years had elapsed. Despite being served, the respondent neither filed a response nor appeared at the hearing. The court held that the inexcusable and inordinate delay of about nine years, coupled with the respondent's evident lack of interest, placed him squarely within the operation of Rule 83, and it adopted its earlier exposition of the Rule in Quicklubes E. A. Limited v Kenya Railways Corporation [2014] eKLR, noting that Rule 83 confers an unfettered discretion exercisable even suo motu and is designed to stem abuse of process and promote case management. The application was allowed with costs and the Notice of Appeal dated 4th March 2009 was deemed withdrawn. The underlying High Court judgment stands undisturbed; this ruling does not disturb any decision below.

Questions the Court framed

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

  1. 1.Whether the Notice of Appeal dated 4th March 2009 should be deemed withdrawn under Rule 83 of the Court of Appeal Rules following the respondent's failure to institute the appeal within the appointed time

Key legal issues

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Deemed withdrawal of a notice of appeal under Rule 84/83 of the Court of Appeal Rules

Holding

A respondent may apply under Rule 83 to have a stale notice of appeal deemed withdrawn where the appellant has failed to institute the appeal within the prescribed time under Rule 82(1); inordinate and inexcusable delay plus lack of interest justify the order.

Reasoning

The respondent lodged a Notice of Appeal on 4th March 2009 but took no further step for about 8 years, taking none even to oppose the application. The court, adopting its reasoning in Quicklubes E. A. Limited v Kenya Railways Corporation, held that Rule 83 confers an unfettered discretion exercisable even suo motu, and that the respondent placed himself squarely within the operation of the Rule. The Rule stems abuse of process and promotes case management efficiency.

p. 1

Legal principles established

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  • Under Rule 83 of the Court of Appeal Rules, a party who lodges a notice of appeal but fails to institute the appeal within the appointed time is deemed to have withdrawn the notice, and the court may so declare on its own motion or on application, even after very long delay.

Court orders

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  1. 1.The application dated 11th May 2017 is allowed with costs
  2. 2.The Notice of Appeal dated 4th March 2009 is deemed as withdrawn

The bench

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

majority
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.C No. 442 of 2000
Jurisdiction invoked
Rule 83 of the Court of Appeal Rules

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.

Rule 83 gives this court unfettered discretion to deem an appeal as withdrawn if a party files a notice of appeal and then goes to slumber, by failing to initiate the other necessary processes to ensure that the appeal is filed and served.
p. 1Discretion under Rule 83
The Rule is meant to stem abuse of the court process and also promote efficiency in terms of case management. That is why the Court of Appeal Rules allow the court to invoke Rule 83 suo motu if the respondent in the intended appeal does not move the court.
p. 2Purpose of Rule 83
Consequently, we find that the application lodged in this Court on 11 th May, 2017 has merit and is hereby allowed with costs. The Notice of Appeal dated 4th March, 2009 is deemed as withdrawn.
p. 2Final orders

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, "Bamburi Cement Ltd v Evanson Mwawasi Mwadime [2018] KECA 145 (KLR)", Case Analysis (2018). Civil Application No. 24 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/145/eng@2018-11-15

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