Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application No. 6 of 2017· [2019] KECA 1055 (KLR)

Evans Achimba v Stitch Masters Limited

Court of Appeal
25 January 2019
AVAlnashir VisramRNR. N. NambuyeJMJ. Mohammed
919 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that sitting on a filed appeal for too long can get it thrown out as withdrawn.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nairobi (Visram, Nambuye and J. Mohammed, JJ.A) on an application by Evans Achimba seeking an order that a notice of appeal filed by Stitch Masters Limited on 24th June, 2015 be deemed withdrawn under Rule 83 of the Court of Appeal Rules. The underlying dispute arose from Cause No. 539 of 2012 before the Employment and Labour Relations Court (Nduma Nderi, J.), in which the applicant, through his union, successfully challenged the unfair termination of his services and was awarded Kshs.234,464 by judgment dated 21st November, 2014. The respondent's application for review was dismissed with costs on 19th June, 2015, prompting the notice of appeal. The Registrar of the ELRC notified the parties on 30th August, 2016 that certified proceedings were ready, meaning the appeal ought to have been filed by 31st October, 2016 under Rule 82(1). No appeal was instituted. The respondent neither filed a response to the application nor appeared at the hearing. Applying the criteria set out in Quicklubes E. A. Limited v Kenya Railways Corporation, the court held that the respondent had gone to slumber and lost interest in the appeal, and that Rule 83 exists to stem abuse of court process and promote case-management efficiency. The application was allowed with costs and the notice of appeal deemed withdrawn with costs. The decision binds subordinate courts and tribunals on the operation of Rule 83.

Key legal issues

#
01

Whether failure to institute an appeal within the time prescribed by Rule 82(1) warrants deeming the notice of appeal withdrawn under Rule 83

Holding

The notice of appeal was deemed withdrawn because the respondent failed to file the appeal by 31st October, 2016 despite the certified proceedings being ready on 30th August, 2016, and showed no interest by non-appearance.

Reasoning

The court applied Rule 83, adopting the Quicklubes criteria: a party who files a notice of appeal and then goes to slumber may have it deemed withdrawn. The certified proceedings were ready on 30th August, 2016, so the appeal was due by 31st October, 2016 under Rule 82(1). No appeal was filed, and the respondent neither responded to nor appeared at the hearing, evidencing loss of interest.

p. 2

Legal principles established

#
  • Where a party who has lodged a notice of appeal fails to institute the appeal within the appointed time, the court may, on its own motion or on application, deem the notice of appeal withdrawn under Rule 83.

Court orders

#
  1. 1.The application is allowed with costs
  2. 2.The notice of appeal dated 24th June, 2015 is deemed as withdrawn with costs
On appeal from
Employment and Labour Relations Court at Nairobi
Cause No. 539 of 2012
Jurisdiction invoked
Sections 3A & 3B of the Appellate Jurisdiction Act and Rules 1(2), 82(1) & 83 of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Evans Achimba v Stitch Masters Limited", Case Analysis (2019). Civil Application No. 6 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1055/eng@2019-01-25

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