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Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application E037 of 2022· [2022] KECA 1230 (KLR)

Bitok v Lelei

Court of Appeal
4 November 2022
1,679 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that failing to file an appeal within 60 days automatically kills your notice of appeal and any protective orders attached to it.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal (Kiage, Ngugi and Tuiyott, JJA) on a motion by Hosea Bitok under Rule 83 of the Court of Appeal Rules, 2010, seeking that two notices of appeal lodged by Kimutai Lelei be deemed withdrawn. The underlying matter is ELC No. 414 of 2012 before Odeny, J. of the Environment and Land Court at Eldoret, who on 31st July 2019 declared the applicant owner of the suit property and ordered vacant possession. The respondent's applications for stay were dismissed by rulings of 10th December 2019 and 25th February 2020, against which he lodged notices of appeal but never properly instituted appeals: no record was filed against the first ruling, and the record against the second was lodged without payment of filing fees for some seven months. The applicant relied on Mae Properties Limited v Joseph Kibe, and the court reiterated its holding in John Mutai Mwangi v Mwenja Ngure that Rule 83 is a mandatory deeming provision operating as an inbuilt case-management mechanism to prevent litigants from parking at the appeal gate while enjoying interim relief. Satisfied that the 60-day period had lapsed with no proper appeal on record, the court deemed both notices withdrawn, vacated the stay and injunction orders granted on 4th December 2020, and allowed the application with costs to the applicant. The respondent's late replying affidavit was expunged. This ruling binds subordinate courts and the High Court on the automatic operation of Rule 83.

Key legal issues

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01

Whether failure to institute appeals within 60 days triggers deemed withdrawal of the notices of appeal

Holding

Yes. The respondent filed no record of appeal against the 10th December 2019 ruling, and the record against the 25th February 2020 ruling was not properly on record for failure to pay filing fees; the 60 days having lapsed, both notices are deemed withdrawn.

Reasoning

Rule 83 prescribes the mandatory legal consequence of non-institution within the appointed time. The respondent admitted no record was filed for the first ruling and that filing fees remained unpaid for seven months for the second. The deeming consequence operates automatically upon lapse of time, and the court may on application give effect to it, with costs to the party served.

02

Whether interim protective orders survive the deemed withdrawal of the notices of appeal

Holding

No. The stay of execution and injunction orders granted on 4th December 2020 in Civil Application No. 48 of 2020 flow from the intended appeals and are vacated once the notices are deemed withdrawn.

Reasoning

The stay and injunction orders were granted pending hearing and determination of the intended appeals. Since the notices of appeal are deemed withdrawn, there are no appeals to which the interim relief could attach; it follows naturally that the stay orders are vacated, preventing a respondent from perpetually enjoying interim relief without prosecuting an appeal.

p. 4

Legal principles established

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  • Under Rule 83, 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 application, with the defaulting party liable for costs.
  • The deeming consequence under Rule 83 sets in automatically the moment the appointed time lapses; the rule is mandatory and peremptory.

Court orders

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  1. 1.The notices of appeal dated 20th December 2019 and 28th February 2020 are deemed as withdrawn
  2. 2.The stay orders granted on 4th December 2020 are vacated
  3. 3.The application succeeds with costs to the applicant

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 83
  • Court of Appeal Rules (current)Rule 85

Cases cited (2)

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

    Mandatory, peremptory nature of Rule 83; deeming sets in the moment the appointed time lapses.

  • John Mutai Mwangi & 26 Others vs. Mwenja Ngure & 4 Others
    [2016] eKLR

    Rule 83 as an inbuilt case-management tool to clean up records and deny succor to dilatory appellants.

On appeal from
Environment and Land Court at Eldoret
ELC No. 414 of 2012
Jurisdiction invoked
Rule 83 of the Court of Appeal Rules, 2010 (now Rule 85)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bitok v Lelei", Case Analysis (2022). Civil Application E037 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1230/eng@2022-11-04

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