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Court of AppealPartially AllowedCivil Application No. Nai. E of 2021 (Notice of Motion dated 15th July 2021)· [2024] KECA 271 (KLR)

Supeyo & another v Karingithe (Suing as the representative of the Estate of Karkise Ole Mosire & 2 others; Nyamemba (Interested Party) (Civil Application E254 of 2021) [2024] KECA 271 (KLR)

Court of Appeal of Kenya
8 March 2024
DMD. K. MusingaPKP. O. KiageMNMumbi Ngugi
691 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that if you file a notice of appeal but don't pursue the appeal, your notice is deemed withdrawn and you pay costs.

What this practically means

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Executive summary

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This was an interlocutory application before the Court of Appeal at Nairobi (Musinga, P., Kiage and Ngugi, JJ.A) seeking to have the respondents' notice of appeal dated 26th May 2020 deemed as withdrawn under rules 81(1), 82(2) and 83 of the repealed Court of Appeal Rules, 2010. The underlying dispute arose from a judgment of the Environment and Land Court at Kajiado delivered on 9th December 2019 in ELC Case No. 372 of 2017, followed by a ruling of 21st May 2020 dismissing the respondents' application for review. The respondents lodged a notice of appeal but, more than three years later, had not filed the record of appeal, despite the typed proceedings having been available since February 2021. The respondents filed no replying affidavit; their counsel conceded the default but urged that a pending stay application (E045 of 2024) premised on the notice of appeal should preserve it. The Court held that the stay application was not before it and that, given the conceded and inordinate failure to institute the appeal, there was no reason to sustain the notice. The Court allowed the motion and ordered the respondents to pay the costs of the application. The decision confirms the operation of rule 83: a party who fails to institute an appeal within the appointed time is deemed to have withdrawn the notice of appeal, with the defaulting party liable in costs.

Key legal issues

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01

Effect of failure to institute an appeal within the appointed time after lodging a notice of appeal

Holding

The notice of appeal is deemed withdrawn under rule 83 and the Court may so declare on application by any party; the defaulting party bears the costs

Reasoning

The Court found it undisputed that the respondents had not filed the record of appeal since the judgment of 9th December 2019, with proceedings available since 12th February 2021. Counsel for the respondents conceded the failure. The pending stay application could not save the notice because it was not before the Court, and a delay of over three years afforded no reason to sustain the notice. The Court therefore allowed the motion.

p. 2

Legal principles established

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  • 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 order on its own motion or on application by any party, with the party in default liable for costs

Court orders

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  1. 1.The applicants' notice of motion dated 15th July 2021 is allowed
  2. 2.The respondents' notice of appeal dated 26th May 2020 is deemed withdrawn (the substantive relief of the motion)
  3. 3.The respondents shall bear the costs of the said application
On appeal from
Environment and Land Court (ELC) at Kajiado
ELC Case No. 372 of 2017
Jurisdiction invoked
Rules 81(1), 82(2) and 83 of the Court of Appeal Rules, 2010 (now repealed)

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, "Supeyo & another v Karingithe (Suing as the representative of the Estate of Karkise Ole Mosire & 2 others; Nyamemba (Interested Party) (Civil Application E254 of 2021) [2024] KECA 271 (KLR)", Case Analysis (2024). Civil Application No. Nai. E of 2021 (Notice of Motion dated 15th July 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/271/eng@2024-03-08

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