Justine Kazungu Baya (suing On Her Own Behalf and On Behalf of The Estate of Baya Mwanyule Jefa Alias Baya Yaa) v Peter Kazungu Kalama & 2 others
The bottom line
#Kenya's Court of Appeal confirmed you only have 30 days to ask for a Notice of Appeal to be struck out—file late and your application fails.
What this practically means
#Executive summary
#Key legal issues
#Competency of a striking-out application filed outside the thirty-day window in the proviso to Rule 84
The application, lodged on October 14, 2022, over one year after service of the Notice of Appeal, was incompetent and could not be entertained
Rule 84 of the 2010 Rules (now Rule 86 of the 2022 Rules) allows any person affected by an appeal to apply to strike out a Notice of Appeal or Appeal, but the proviso mandates that such application be made within thirty days of service of the Notice or Record of Appeal. The applicant filed well outside that window, so the primary prayer failed on a jurisdictional timing bar.
Whether the Court should deem the Notice of Appeal withdrawn under Rule 83
The discretion was not attracted: the 2nd Respondent's death necessitated substitution, and steps to obtain typed proceedings and a certificate of delay showed the appellants had not slept on their rights
Rule 83 (and Rule 85 of the 2022 Rules) permits the Court, on application or sua sponte, to deem a Notice of Appeal withdrawn, but only where circumstances justify it. Here the death of the 2nd Respondent required substitution before further steps, and the uncontested steps of seeking certified proceedings and a certificate of delay negated any inference of inaction. Allegations of misuse of stay orders were baseless as the charge predicated the judgment and stay orders by years.
Alleged misuse of stay orders to charge the suit property
The allegation was rejected as the loan facility and charge dated May 27, 2012 (registered June 8, 2018) predated both the trial judgment of January 29, 2021 and the stay orders of June 4, 2021
The applicant alleged the 1st Respondent was using the stay orders to illegally transact with the suit property. A perusal of the search and green card showed the charge in favour of Gulf of African Bank was entered long before both the trial court's judgment and the Court's stay orders, so the alleged misuse could not factually be attributed to the pendency of the appeal.
Legal principles established
#- An application to strike out a Notice of Appeal or Appeal under Rule 84 of the Court of Appeal Rules, 2010 (Rule 86 of the 2022 Rules) must be brought within thirty days of service of the Notice of Appeal or Record of Appeal, failing which it is incompetent
- The power to deem a Notice of Appeal withdrawn under Rule 83 of the 2010 Rules / Rule 85 of the 2022 Rules is discretionary and predicated on the existence of circumstances from which the Court can deem the Notice withdrawn, such as where the appellant has taken no steps in the appeal
- Where an appellant in a pending appeal has died, substitution of the deceased by a legal representative is necessary before further steps are taken in the appeal
Court orders
#- 1.The Notice of Motion application dated October 13, 2022 is dismissed
- 2.Costs of the application awarded to the 1st and 3rd Respondents
- Jurisdiction invoked
- Inherent application jurisdiction under Rules 83, 84 and 85 of the Court of Appeal Rules, 2010 and corresponding 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, "Justine Kazungu Baya (suing On Her Own Behalf and On Behalf of The Estate of Baya Mwanyule Jefa Alias Baya Yaa) v Peter Kazungu Kalama & 2 others", Case Analysis (2023). Malindi Civil Application (appeal arising from Malindi ELC No 206 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/701/eng@2023-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.