Bitok v Lelei
The bottom line
#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
#Executive summary
#Key legal issues
#Whether failure to institute appeals within 60 days triggers deemed withdrawal of the notices of appeal
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ruling was not properly on record for failure to pay filing fees; the 60 days having lapsed, both notices are deemed withdrawn.
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.
Whether interim protective orders survive the deemed withdrawal of the notices of appeal
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2020 in Civil Application No. 48 of 2020 flow from the intended appeals and are vacated once the notices are deemed withdrawn.
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 Since the notices of appeal are deemed withdrawn, there are no appeals to which the interim relief could attach; it follows naturally that the stay orders are vacated, preventing a respondent from perpetually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.
Legal principles established
#- 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83, a party who lodges a notice of appeal but fails to institute the appeal within the appointed time is deemed to have withdrawn the notice, and the court may so order on application, with the defaulting party liable for costs.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
#- 1.The notices of appeal dated 20th December 2019 and 28th February 2020 are deemed as withdrawn
- 2.The stay orders granted on 4th December 2020 are vacated
- 3.The application succeeds with costs to the applicant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.