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Court of AppealAllowedCivil Application No. E of 2022 (Motion dated 25th August 2022)· [2023] KECA 1550 (KLR)

Pandya & another v Baya & 3 others (Civil Application E057 of 2022) [2023] KECA 1550 (KLR)

Court of Appeal
15 December 2023
SKS. Gatembu KairuPNP. NyamweyaGOG.V. Odunga
1,101 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal confirmed that a notice of appeal is automatically deemed withdrawn if the appeal isn't filed on time in Kenya.

What this practically means

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Executive summary

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This was an application, not a full appeal, before the Court of Appeal at Nairobi under Rules 82 and 83 of the Court of Appeal Rules and Section 42 of the Appellate Jurisdiction Act, seeking the striking out of a notice of appeal dated 10th June 2021. The underlying dispute concerned Plot No. 258 Section I MN, in which the Environment and Land Court at Mombasa (Sila Munyao, J.) on 9th June 2021 dismissed the respondents' adverse possession suit and ordered them to vacate within 90 days. The respondents lodged a notice of appeal which was served on the applicants on 22nd June 2021, but they never filed the memorandum and record of appeal, despite reminders by letters dated 4th and 25th July 2022, while enjoying a stay of execution granted by the ELC on 23rd June 2022. The applicants, through Harshit Mulvantrai Rawal holding a power of attorney, moved under the deeming provisions of Rule 83 (now Rule 85(1) of the 2022 Rules). Relying on its previous decisions in Kenya Ports Authority vs. Maur Abdalla Bwanamaka, Mae Properties Limited vs Joseph Kibe and Mombasa Water Products Limited vs NIC Bank Limited, the Court held the deeming consequence is mandatory and sets in the moment the appointed time lapses. Finding no contest that the time for instituting the appeal had long lapsed, the Court invoked Rule 85(1), deemed the notice of appeal withdrawn, allowed the application dated 25th August 2022, and awarded the applicants the costs of the application.

Key legal issues

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01

Effect of failure to institute an appeal within the appointed time under Rule 83 (Rule 85(1)) of the Court of Appeal Rules

Holding

Where an intended appellant fails to file the memorandum and record of appeal within the appointed time despite reminders, the notice of appeal is deemed withdrawn and the Court may strike it out / deem it withdrawn on application.

Reasoning

The Court invoked Rule 83 (now Rule 85(1) of the 2022 Rules), relying on its prior decisions in Kenya Ports Authority vs. Maur Abdalla Bwanamaka, Mae Properties Limited vs Joseph Kibe and Mombasa Water Products Limited vs NIC Bank Limited. It found no contest that the notice of appeal was served on 22nd June 2021, that the respondents never filed the memorandum and record of appeal under Rule 84, and that the time for doing so had long lapsed, making this a proper case for the deeming provision.

p. 3
02

Respondents' objection that the application violated Rule 86 and was fatally defective

Holding

The objection was not upheld; the Court allowed the application notwithstanding that it was filed on 30th August 2022 after service of the notice of appeal on 22nd June 2021.

Reasoning

The respondents' advocates argued in written submissions that the application was out of time under Rule 86 because it was filed long after the notice of appeal was served. The Court did not address or accept this objection and instead found the application a proper case for invoking Rule 85(1), allowing it with costs to the applicants.

p. 3

Legal principles established

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  • 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 on its own motion or on application so declare, with the defaulting party liable for costs.
  • The deeming consequence under Rule 83 sets in automatically the moment the appointed time lapses; it is mandatory and peremptory.

Court orders

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  1. 1.Invoking Rule 85(1) of the Court of Appeal Rules, 2022, the notice of appeal dated 10th June 2021 is deemed as withdrawn
  2. 2.The application dated 25th August 2022 is allowed
  3. 3.The applicants are awarded the costs of the application

Authorities

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Legislation

  • Court of Appeal RulesRule 82
  • Court of Appeal RulesRule 83
  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 86
  • Court of Appeal Rules, 2022Rule 85(1)
  • Appellate Jurisdiction ActSection 42

Cases cited (5)

  • John Mutai Mwangi & 26 others vs. Mwanja Ngure & 4 others
    [2016] eKLR
  • Salama Beach Hotel Limited & 4 others vs. Kenyariri & Associates Advocates & 4 others
    [2016] eKLR
  • Kenya Ports Authority vs. Maur Abdalla Bwanamaka
    [2018] eKLR
  • Mae Properties Limited vs Joseph Kibe & another
    [2017] eKLR
  • Mombasa Water Products Limited vs NIC Bank Limited & 2 others, Civil Application No. E051 of 2021
    [2022] KECA 523 (KLR)
On appeal from
Environment and Land Court at Mombasa
Jurisdiction invoked
Rules 82, 83 and 85(1) of the Court of Appeal Rules, 2022 and Section 42 of the Appellate Jurisdiction Act

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, "Pandya & another v Baya & 3 others (Civil Application E057 of 2022) [2023] KECA 1550 (KLR)", Case Analysis (2023). Civil Application No. E of 2022 (Motion dated 25th August 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1550/eng@2023-12-15

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