Musundi & another v Barasa & 2 others
The bottom line
#Kenya's Court of Appeal confirmed that a notice of appeal left unprosecuted for 60 days can be declared withdrawn, ending stalled appeals.
What this practically means
#Executive summary
#Key legal issues
#Competence of the Rule 84 striking-out application filed out of time
The Rule 84 application was incompetent as it was brought more than thirty days after the filing of the notice of appeal.
Rule 84 requires an application to strike out a notice of appeal to be brought within thirty days of service of the notice or record of appeal. The application here was brought more than thirty days after the filing of the notice. Following Salama Beach Hotel and Joyce Bochere Nyamweya, time stipulations are of essence and must be strictly observed; the proper course for an out-of-time applicant is to seek extension of time under Rule 4.
Deeming of the notice of appeal as withdrawn under Rule 83
The notice of appeal was deemed withdrawn because the respondents never instituted their appeal within the appointed time.
Rule 82 required the record of appeal to be filed within 60 days of the notice of appeal. There was no evidence that a record of appeal was ever filed or served, and the respondents had no answer to that contention. Rule 83 imposes no time limit on an application to deem a notice withdrawn, so the application was properly anchored there, and the court deemed the notice withdrawn.
Compliance with Rule 82 timelines for filing the record of appeal
The respondents failed to comply with Rule 82 by not filing the record of appeal within 60 days, and the contention was unanswerable.
Counsel for the respondents was cagey about whether and when a record of appeal was filed, and the replying affidavit was silent on service of the notice of appeal and on filing of the record. The proviso to Rule 82 excluding time for preparation of proceedings applies only where the bespeaking letter was in writing and served, which was not demonstrated.
Legal principles established
#- An application to strike out a notice of appeal under Rule 84 must be brought within 30 days of service of the notice of appeal or record of appeal; filed out of time it is fatally defective, and the remedy is an extension of time under Rule 4.
- There is no time limit for an application to deem a notice of appeal withdrawn under Rule 83, and such an application is properly anchored under that Rule.
- An appellant who fails to institute an appeal within the appointed time is deemed to have withdrawn the notice of appeal, and the court may so order on its own motion or on application.
Court orders
#- 1.The application dated August 12, 2021 is allowed
- 2.The notice of appeal dated July 23, 2019 is deemed as withdrawn
- 3.The applicants shall have the costs of the application
- On appeal from
- High Court of Kenya at Kitale
- Succession Cause No. 12 of 2019
- Jurisdiction invoked
- Rules 83 and 84 of the Court of Appeal Rules 2010 (now Rules 85 and 86 of the Court of Appeal Rules, 2022)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musundi & another v Barasa & 2 others", Case Analysis (2022). Civil Application E121 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1222/eng@2022-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.