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Brooke Bond (K) Ltd v Gezzam (Civil Application 6 of 2020) [2022] KECA 667 (KLR) (8 July 2022) (Ruling)
Neutral citation:
[2022] KECA 667 (KLR)
Republic of Kenya
Civil Application 6 of 2020
HM Okwengu, AK Murgor & F Sichale, JJA
July 8, 2022
Between
Brooke Bond (K) Ltd
Applicant
and
Elisha Kirigha Gezzam aka Elisha Kirigha Gezzam Mwambi
Respondent
(Being an Application to deem as withdrawn the Notice of Appeal dated 9th October, 2013 in an intended appeal against judgment and decree of the Industrial Court of Kenya at Mombasa (Radido, J) delivered on 27th September, 2013 in Civil Suit No 40 of 2013 (Formerly Mombasa HCCC No. 83 of 2006)
Ruling
1.By notice of motion dated November 18, 2019 the applicant Brooke Bond (K) Ltd, has moved this Court under section 3A & 3B of the Appellate Jurisdiction Act, and Rule 83 of the Court of Appeal Rules 2010, seeking to have a Notice of Appeal dated October 9, 2013 that was filed by Elisha Kirigha Gezzam aka Elisha Kirigha Gezzam Mwambi (appellant) deemed as withdrawn.
2.The application is anchored on the ground that since lodging the notice more than 6 years ago, the appellant has not taken any steps to institute the appeal. The application is also supported by an affidavit sworn by the applicant’s advocate who reiterates that the appellant has not taken any action since filing the notice. In addition, the applicant has filed written submissions urging the Court to grant the motion citing Rule 83 of the Court of Appeal Rules 2010 and Mae Properties Limited v Joseph Kibe & another [2017] eKLR. The applicant also prays for costs.
3.By a hearing notice that was duly served through email on May 5, 2021on all the parties’ advocates, the parties were informed that due to the Covid Pandemic, the hearing of the motion would proceed through written submissions and the parties were given timeline to exchange and file written submissions with a deadline of 24 hours before the hearing date, which was scheduled for May 31, 2021. However, the appellant did not file any reply to the motion nor did he file any written submissions. In effect therefore the motion stands unopposed.
4.Rule 83 of the Court of Appeal Rules 2010 which has been renumbered as Rule 85 of the Court of Appeal Rules, 2022, states:
5.The applicant has not taken any action to institute the appeal since filing the Notice of Appeal 6 years ago. He was required under Rule 82 of the Court of Appeal Rules 2010, to institute the appeal within 60 days from the date of filing the notice of appeal. He has not explained this omission nor has he even bothered to respond to the applicant’s motion, and therefore it is evident that he has lost interest in the appeal. In the circumstances, it is appropriate that the notice of appeal filed by the appellant be deemed as withdrawn.We therefore allow the applicant’s motion and issue orders as prayed in the motion.
DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF JULY, 2022.HANNAH OKWENGU................................JUDGE OF APPEALA. K. MURGOR................................JUDGE OF APPEALF. SICHALE................................JUDGE OF APPEALI certify that this is a true copy of the originalSigned DEPUTY REGISTRAR
