Salim v Bafadhil
The bottom line
#Kenya's Court of Appeal can declare an abandoned appeal withdrawn on its own, so never file a notice of appeal and then let it sit.
What this practically means
#Executive summary
#Key legal issues
#Competence of out-of-time Rule 84 applications
The application to strike out was incompetent as it was filed beyond the thirty-day limit in the proviso to Rule 84, as counsel conceded.
The proviso to Rule 84 requires striking-out applications within thirty days of service of the notice or record of appeal. Excluding the Christmas Vacation, the record was due February 4, 2019 and the striking-out deadline was March 5, 2019. The July 2019 application fell outside this window, and established authority holds such late applications incompetent.
Court's own-motion power under Rule 83
The Court invoked Rule 83 of its own motion and deemed the unprosecuted notice of appeal withdrawn, since the respondent filed no reply, submissions, or application for proceedings.
Rule 83 is an inbuilt case-management mechanism enabling the Court to clean its records of notices of appeal not backed by records of appeal within 60 days. It may be invoked on the Court's own motion. Here, the respondent's inactivity and pro forma opposition left the inactivity uncontested, warranting the deeming order.
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 or record of appeal; an application made outside that window is incompetent.
- Rule 83 permits the Court, on its own motion, to deem a notice of appeal withdrawn where it has not been followed up by a record of appeal within 60 days.
- Rule 83 is not a substitute for Rule 84 and cannot be used to circumvent the time limits in the proviso to Rule 84; it applies only where circumstances justify deeming withdrawal.
Court orders
#- 1.The notice of appeal dated November 9, 2018 is deemed withdrawn under Rule 83 of the Court of Appeal Rules
- 2.Costs of the application awarded to the applicant
- On appeal from
- Environment & Land Court at Malindi
- ELC Case No. 155 of 2014
- Jurisdiction invoked
- Rules 42(1), 82, 83, 84 and 84 (proviso) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salim v Bafadhil", Case Analysis (2022). Civil Application 105 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/775/eng@2022-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.