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 AppealPartially AllowedCivil Application 1 of 2018· [2022] KECA 673 (KLR)

Juma & 152 others v Shah & 2 others

Court of Appeal
8 July 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
1,607 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck a dormant 2015 appeal off its books, confirming that unfiled notices of appeal are automatically treated as withdrawn.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Mombasa (Kairu, Nyamweya and Lesiit, JJA) on the Applicants' Notice of Motion dated 14th December 2017, as amended on 19th October 2018, seeking to strike out the Respondents' Notice of Appeal dated 8th July 2015 lodged against a ruling of A. Omollo J in Mombasa High Court Civil Suit No. 631 of 2011 dismissing an application to set aside judgment and for leave to defend. The Applicants argued that the notice of appeal was filed out of time under Rule 75(2) and that the memorandum and record of appeal were never lodged under Rule 82(1). The Court held that under the proviso to Rule 84, a striking-out application must be brought within thirty days of service of the notice of appeal or record of appeal, and that the Applicants' application, filed on 14th December 2017, was therefore out of time and incompetent. However, following Mae Properties Limited v Joseph Kibe, the Court invoked the deeming provision in Rule 83 of the 2010 Rules (now Rule 85 of the 2022 Rules) on its own motion, holding that a party who fails to institute an appeal within the appointed time is deemed to have withdrawn the notice of appeal, and that the Respondents' inaction since 2015 justified the intervention. The application was allowed only to the extent that the Notice of Appeal dated 8th July 2015 was deemed and marked as withdrawn, with no order as to costs. The Respondents filed no response or submissions.

Key legal issues

#
01

Timeliness of a Rule 84 striking-out application

Holding

The Applicants' application filed on 14th December 2017 was out of time and incompetently filed, as it exceeded the thirty-day limit in the proviso to Rule 84 measured from service of the notice of appeal.

Reasoning

The proviso to Rule 84 bars any striking-out application brought after thirty days from service of the notice of appeal or record of appeal. Precedent holds this mandatory; a party caught by lapse of time must instead seek extension of time under Rule 4. The application here was filed long after the 30-day window, so it was incompetent.

p. 2
02

Court's power to deem a notice of appeal withdrawn under Rule 83

Holding

Despite the incompetence of the striking-out application, the Court exercised its power under Rule 83 (now Rule 85 of the 2022 Rules) to deem the Notice of Appeal withdrawn, on its own motion, given the Respondents' inaction since 2015.

Reasoning

Rule 83 deems a notice of appeal withdrawn where the party fails to institute the appeal within the appointed time, and the Court may act on its own motion. Following Mae Properties, the deeming is mandatory and peremptory, setting in when time lapses. The Respondents' inaction since lodging the notice in 2015 justified the intervention.

p. 3

Legal principles established

#
  • An application to strike out a notice of appeal under Rule 84 must be brought within thirty days of service of the notice of appeal or record of appeal; failure renders it fatally defective.
  • 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.
  • The deeming under Rule 83 sets in automatically upon lapse of the appointed time, and the Court may resort to it even where a Rule 84 striking-out application is itself out of time.

Court orders

#
  1. 1.The Notice of Appeal dated 8th July 2015 is deemed and marked as withdrawn
  2. 2.No order as to costs

Authorities

#

Legislation

  • Court of Appeal RulesRule 75(2)
  • Court of Appeal RulesRule 82(1)
  • Court of Appeal RulesRule 83
  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 4
  • Court of Appeal Rules 2022Rule 85

Cases cited (5)

  • Salama Beach Hotel Limited & 4 Others vs Kenyariri & Associated Advocates & 4 Others
    (2016) eKLR

    Timelines for taking steps are indispensable; restates the mandatory 30-day limit under the proviso to Rule 84.

  • Joyce Bochere Nyamweya v Jemima Nyaboke Nyamweya & another
    [2016] eKLR

    Parties bound by the mandatory proviso to Rule 84; out-of-time striking-out applications are fatally defective.

  • William Mwangi Nguruki v Barclays Bank of Kenya Ltd
    [2014] eKLR

    A striking-out application brought after 30 days from service is incompetent unless leave to file out of time is obtained.

  • Michael Mwalo v Board of Trustees of National Social Security Fund
    [2014] eKLR

    Cited in support of the same Rule 84 timeliness proposition.

  • Mae Properties Limited vs Joseph Kibe & Another
    [2017] eKLR

    The Court may deem a notice of appeal withdrawn on its own motion under Rule 83 despite an out-of-time Rule 84 application.

On appeal from
High Court at Mombasa
Mombasa High Court Civil Suit No. 631 of 2011
Jurisdiction invoked
Rules 75, 82, 83 and 84 of the Court of Appeal Rules, 2010 (and Rule 85 of the Court of Appeal Rules, 2022)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Juma & 152 others v Shah & 2 others", Case Analysis (2022). Civil Application 1 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/673/eng@2022-07-08

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