Kizito Savali v Marshalls East Africa Limited [2019] KECA 722 (KLR)
The bottom line
#If you file a notice of appeal in Kenya but don't file the full appeal record within 60 days, that notice dies automatically and can be struck out.
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 dated 16th August 2013 should be struck out on the ground that no record of appeal was filed within the prescribed 60 days or within the 45 days allowed by the consent order of 16th April 2015
- 2.Whether the respondent had lost interest in prosecuting the intended appeal
- 3.Whether the orders of stay of execution granted on 16th April 2015 should be discharged
Key legal issues
#Effect of failure to file a record of appeal within 60 days
The notice of appeal dies a natural death after expiry of 60 days unless time is extended by lodgment of the appeal within 60 days or by operation of the proviso to Rule 82(1)
The court noted the Rules require a record of appeal to be filed within 60 days of lodgment of the Notice of Appeal. Here no record was filed within that period or at all, contrary to the Rules and to the consent order of 16th April 2015 requiring filing within 45 days. Adopting MAE Properties Ltd v Joseph Kibe, the court held the notice had lapsed.
Lost interest and delay in appellate proceedings
Where a party sleeps on its appeal and complies with neither the Rules nor court orders, the court may conclude it has lost interest and strike out the notice of appeal
Relying on Martin Kabaya v David Mungania Kiambi, the court emphasized that justice must be concluded in a timely fashion and that delay burdens both litigants and the Judiciary. The respondent's counsel could not explain the non-filing of the record or the presence of two law firms on record, supporting the conclusion that the respondent had abandoned the appeal.
Legal principles established
#- A notice of appeal lapses if the record of appeal is not filed within 60 days, subject to the proviso to Rule 82(1) on exclusion of time
- A party who fails to comply with the Court of Appeal Rules and with orders as to time may have the notice of appeal struck out, particularly where it is evident they have lost interest in the appeal
Court orders
#- 1.The Notice of Appeal dated 16th August 2013 is struck out
- 2.Costs of the motion granted to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Industrial Court of Kenya at Nairobi
- Cause No. 1264 of 2010
- Jurisdiction invoked
- Rules 83 and 84 of the Court of Appeal Rules, 2010 (application to strike out a Notice of Appeal)
Relief refused
#Alternative prayer to deem the Notice of Appeal as having been withdrawn
Moot once the court struck out the notice
Discharge of the orders of stay of execution granted on 16th April 2015
No express order in the ruling discharging the stay; only the Notice of Appeal was struck out and costs granted
Costs
Costs of the motion granted to the applicant
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.
We conclude that the respondent lost interest in the intended appeal and the notice of appeal lodged died a natural death. The same is struck out and we grant costs of the motion to the applicant.
“It is safe to say, therefore, that a notice of appeal dies a natural death after the expiry of sixty days unless its life should be sooner extended by lodgment of the appeal within 60 literal days, or such longer time as may still amount to 60 days by operation of the proviso to Rule 82(1) on exclusion.”
We note that it is required by the Rules of this Court that a record of appeal be filed within 60 days of the date when a Notice of Appeal was lodged. The record of appeal here was not lodged within 60 days or at all.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kizito Savali v Marshalls East Africa Limited [2019] KECA 722 (KLR)", Case Analysis (2019). Civil Application No. 48 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/722/eng@2019-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.