Kaitet Tea Estate (1977) Ltd v Simatwa & another (Civil Application E059 of 2021)  KECA 1421 (KLR) (16 December 2022) (Ruling)
Neutral citation:  KECA 1421 (KLR)
Republic of Kenya
Civil Application E059 of 2021
PO Kiage, M Ngugi & F Tuiyott, JJA
December 16, 2022
Kaitet Tea Estate (1977) Ltd
Peter M. N. Simatwa
Gatatha Farmers Co. Limited
(Application to deem as withdraw the notice of appeal against the judgment and decree of the High Court of Kenya at Kitale (Mwangi Njoroge, J.) dated 30th May, 2018inELC No. 36 of 2013 Land Case 36 of 2013 )
1.The motion dated April 30, 2021, filed by Kaitet Tea Estate  LTD (the applicant), seeks to have the notice of appeal filed at the High Court by Peter M N Simatwa (the 1st respondent) on June 7, 2018 deemed as withdrawn under rule 83 of the Court of Appeal Rules, 2010 (now rule 85). The said notice of appeal is dated June 6, 2018 and signified the 1st respondent’s intention to file an appeal against a judgment of that court (Mwangi Njoroge, J) delivered on May 30, 2018.
2.The grounds on which the motion is premised appear on its face and in the affidavit of Peter Kipngeno Kotut, a director of the applicant company. The grounds are that, the judgment against which the 1st respondent intends to appeal was delivered on May 30, 2018; the 1st respondent filed his notice of appeal on June 6, 2018 and lodged it on June 7, 2018; a letter bespeaking proceedings was also filed the same day as the notice of appeal; the 1st respondent, however, failed to institute his appeal within the stipulated 60 days and neither has he taken any steps so far to ensure that the appeal proceeds for hearing; the delay in prosecuting the intended appeal is prejudicial to the applicant as the 1st respondent continues to occupy its land reference No 6137 in Trans-Nzoia, and leasing part of it, thus interfering with the applicant’s quiet enjoyment of its rightful property.
3.During the hearing of the motion, it was apparent that the respondent had not filed a response and neither did he appear for the hearing even though he had been served with the application and the notice for hearing. Learned counsel Mr Odoyo, appeared for the applicant sought to rely on his written submissions, although there are none on record. Learned Counsel Mr Kiira appeared for the 2nd respondent and expressed his support for the application.
4.The case before us is one in which even had the applicant not moved the court, we ought on our motion to have made an order under rule 83, now rule 85 of the rules of the court which is in unequivocal terms;
5.The 1st respondent having lodged his notice of appeal on June 7, 2018 and not taken any steps thus far to institute the appeal should, naturally and logically, in the absence of any showing to the contrary be considered to no longer have interest in the appeal. It is thus obvious that this motion is not only unanswered, but also quite unanswerable.
6.We reiterate what we said in Martin Kabaya v David Mungania Kiambi,Nyeri Civil Application No 12 of 2015;
7.In the result, the notice of motion is allowed, and the notice of appeal dated June 6, 2018 is hereby struck out with costs. The applicant shall have the costs of this motion also.
DATED AND DELIVERED AT KISUMU THIS 16TH DAY OF DECEMBER,2022P O KIAGE.................................................JUDGE OF APPEALMUMBI NGUGI.................................................JUDGE OF APPEALF TUIYOTT.................................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR