[2007] KECA 11 (KLR)

REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAIROBI

Civil Appli. Nai 151 of 2005

AMERICAN LIFE INSURANCE

COMPANY (K) LIMITED ….………………………………………… APPLICANT

AND

PRISCILLA WANJIKU KAMUNYA ……….....……............ 1ST RESPONDENT

FRANCIS NJENGA MBUGUA …………………..……….. 2ND RESPONDENT

(Being an application to strike out notice of appeal lodged

in the High Court of Kenya at Nairobi (Hon. Lady Justice

M.A. Angáwa) dated 26th October, 1998

in

H.C.C.C. NO. 3684 OF 1991)

****************

RULING OF THE COURT

This application is mainly brought under rule 80 and 82of the Court of Appeal Rules (Rules) for the main order that:-

“THAT the Notice of Appeal lodged herein on the 5th day of November, 1998 be struck out on the ground that there has been inordinate and unexplained delay by the defendant/first respondent in filing the intended appeal.”

The application is supported by the affidavit of M. Billing, an advocate from the firm of M/S Guram & Company Advocates which firm is on record for the applicant.

The applicant was a third party in the suit in the superior court, namely, Nairobi HCCC No. 3684 of 1991, Francis Njenga Mbogua v. Priscilla Wanjiku Kamunya. The plaintiff (Francis) had claimed damages against the defendant, (Priscilla) as a result of injuries sustained by Francis in a road traffic accident. Priscilla who had taken out a Commercial Vehicle Insurance Policy from the applicant in respect of her motor vehicle proceeded to apply for a third party notice against her insurers (applicant) seeking indemnity against the claim by Francis. On 26th October, 1998, the superior court dismissed Priscilla’s claim against the applicant on the ground that the commercial vehicle policy did not cover Francis who was being carried in the vehicle in the course of his employment. The superior court however, entered judgment for Francis against Priscilla. On 5th November, 1998, Priscilla filed a Notice of Appeal through her advocates M/s Kiage & Company Advocates indicating that she intended to appeal against that part of decision of the superior court dismissing her claim against the applicant.

By rule 82(a) of the Rules, if a party who has lodged a notice of appeal fails to institute an appeal within the appointed time he shall be deemed to have withdrawn his notice of appeal.

By rule 81(1) of the Rules, Priscilla was required to file the appeal within 60 days of the date when the notice of appeal was lodged excluding such time as may be certified by the Registrar of the superior court as having been required for the preparation and delivery of a copy of proceedings where the intended appellant has applied for such a copy within the stipulated time.

In this case, Prisicilla’s advocates applied to the Deputy Registrar of the superior court for a copy of the proceedings and judgment two days after the delivery of the judgment. In the year 2001, the applicant’s advocates on three occasions reminded the Priscilla’s advocates that they had not yet lodged an appeal and intimated that they would apply for the notice of appeal to be struck out but Priscilla’s advocates, on two occasions requested the applicant’s advocates to refrain from making an application for striking out the notice of appeal as they were to take instructions and consider the next action. There was no action by Priscilla’s advocates and ultimately the applicant’s advocates wrote to Priscilla’s lawyers on 28th May 2004 informing them that they would file an application to strike out the notice of appeal. Again, there was no action.

Moreover the firm of Kiage & Company Advocates neither filed a replying affidavit to the application nor attended the hearing of the application.

The present application was filed nearly seven years after the notice of appeal was lodged. It is evident from the foregoing that Prisicilla has not lodged an appeal within the time prescribed by the Rules. It is apparent from the long period of inaction that she does not now intend to file any.

In the result, the application is allowed. The intended appellant (Priscilla) having been deemed to have withdrawn the notice of appeal we order that the notice of appeal dated 4th November, 1998 and lodged on 5th November, 1998 be struck out from the Register. Costs of the application to the applicant.

Dated and delivered at Nairobi this 6th day of July, 2007.

E. M. GITHINJI

………………..………

JUDGE OF APPEAL

J. W. ONYANGO OTIENO

…………….…………

JUDGE OF APPEAL

W. S. DEVERELL

………………..………

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR