South Coast Holdings Limited v Alibhai t/a Diani Gallery (Civil Appeal (Application) E067 of 2021) [2023] KECA 504 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that once a full appeal is properly filed, an opponent cannot have the initial appeal notice declared withdrawn.
What this practically means
#Executive summary
#Key legal issues
#Whether an application under Rule 85 to deem a notice of appeal withdrawn succeeds where the substantive appeal has already been instituted
It does not; institution of the substantive appeal takes the matter outside the deeming purview of Rule 85.
Rule 85 deems a notice of appeal withdrawn where no appeal is instituted within the prescribed time. The court distinguished the authorities relied on by the respondent, noting that in those cases no letter be-speaking proceedings had been served or no substantive appeal existed. Here the record of appeal had been filed and a certificate of delay explained the delay, so the deeming provision could not be invoked.
Whether the respondent's application, citing Rule 86 but filed beyond the 30-day proviso, is competent
The application was incompetent; a party cannot abandon the basis of its application mid-stream after citing Rules 84, 85 and 86.
The application invoked Rules 84, 85 and 86. When confronted with the 30-day proviso limitation, the respondent retreated to Rule 85 alone, which the court refused to permit. Relying on Salama Beach Hotel, the court noted that an application to strike out brought outside the 30-day proviso is fatally defective unless extension of time is obtained.
Legal principles established
#- Rule 85 deeming only applies where no appeal has been instituted; once the substantive appeal is instituted, the notice of appeal cannot be deemed withdrawn
- Rule 85 deeming is predicated on circumstances supporting withdrawal; where circumstances point the other way, the court cannot deem the notice withdrawn
- Timelines in the Court of Appeal Rules, including the proviso requiring striking-out applications within 30 days of service of the notice of appeal, are mandatory and strictly observed
Court orders
#- 1.The respondent's Notice of Motion dated September 22, 2021 seeking to have the appellant's Notice of Appeal deemed withdrawn is dismissed
- 2.Costs of the application awarded to the appellant
- Jurisdiction invoked
- Rules 82, 83, 84, 85 and 86 of the Court of Appeal Rules, 2010 (now Rules 84, 85 and 86 of the Court of Appeal Rules, 2022)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "South Coast Holdings Limited v Alibhai t/a Diani Gallery (Civil Appeal (Application) E067 of 2021) [2023] KECA 504 (KLR)", Case Analysis (2023). Notice of Motion dated September 22, 2021 in a pending appeal at the Court of Appeal, Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/504/eng@2023-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.