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Court of AppealPartially AllowedNotice of Motion dated March 8, 2023 (Court of Appeal)· [2024] KECA 31 (KLR)

Isaac Onyango & Company Advocates v Hakika Transport Services Limited (Civil Application E015 of 2023) [2024] KECA 31 (KLR)

Court of Appeal of Kenya
26 January 2024
AMA. K. MurgorKLK. I. LaibutaGOG. V. Odunga
1,070 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a notice of appeal dies when the appeal isn't filed on time, and the defaulting party pays costs.

What this practically means

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Executive summary

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This was an interlocutory application before the Court of Appeal, Nairobi, by Isaac Onyango & Company Advocates seeking to have Hakika Transport Services Limited's notice of appeal dated October 5, 2021 and lodged on October 7, 2021 deemed withdrawn under rule 85(1) of the Court of Appeal Rules, or alternatively struck out. The application was supported by Isaac Onyango's affidavit and five authorities, and opposed through the replying affidavit of Abdulhakim Abeid, who attributed the delay in filing the memorandum and record of appeal to an inadvertent oversight by the respondent's former advocates and noted a pending application for extension of time. At the hearing before Murgor, Laibuta and Odunga, JJA, the applicant withdrew the striking-out prayer, presumably because of non-compliance with the proviso to rule 86, leaving only the deeming prayer. The respondent's counsel conceded that the extension-of-time application had been dismissed on June 23, 2023, rendering the notice of appeal superfluous. The court held that, the extension application having been dismissed, the notice of appeal was bereft of procedural value and fell to be deemed withdrawn under rule 85(1), with costs to the applicant. The judgment is a single, unanimous decision of the full bench and binds the High Court and subordinate tribunals on the operation of rule 85(1) of the 2022 Rules.

Key legal issues

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01

Consequence of failure to institute an appeal within the appointed time after lodging a notice of appeal

Holding

The notice of appeal is deemed withdrawn under rule 85(1), and the party in default is liable for costs

Reasoning

Rule 85(1) of the Court of Appeal Rules, 2022 provides that a party who fails to institute an appeal within the appointed time is deemed to have withdrawn the notice of appeal, and the Court may make such order on its own motion or on application. Sub-rule (2) makes the defaulting party liable to pay costs. The applicant invoked this rule after the respondent failed to lodge its appeal for over a year and a half.

p. 2
02

Effect of dismissal of an extension-of-time application on the underlying notice of appeal

Holding

Once the extension application is dismissed, the notice of appeal loses all procedural value and is liable to be deemed withdrawn

Reasoning

The court noted that the respondent's application for extension of time to file and serve its memorandum and record of appeal had been dismissed on June 23, 2023, a fact conceded by the respondent. With no extension granted, the respondent could not institute its appeal, rendering the notice of appeal superfluous and ineffectual, and it accordingly fell to be deemed withdrawn under rule 85.

p. 3

Legal principles established

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  • Where an application for extension of time to file and serve a memorandum and record of appeal is dismissed, the underlying notice of appeal is ineffectual and liable to be deemed withdrawn under rule 85(1)
  • A party who lodges a notice of appeal but fails to institute an appeal within the appointed time is deemed to have withdrawn the notice, and the Court may so order on its own motion or on application

Court orders

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  1. 1.The respondent's notice of appeal dated October 5, 2021 and lodged on October 7, 2021 be and is hereby deemed as withdrawn pursuant to rule 85(1) of the Court of Appeal Rules, 2022
  2. 2.Costs of the application to the applicant

Authorities

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Legislation

  • Court of Appeal Rulesrule 83
  • Court of Appeal Rulesrule 84
  • Court of Appeal Rulesrule 85(1)
  • Court of Appeal Rulesrule 85(2)
  • Court of Appeal Rulesrule 86 (2022 Rules)

Cases cited (6)

  • Mae Properties Limited vs. Joseph Kibe & Another
    [2017] eKLR
  • Habo Agencies Limited vs. Wilfred Odhiambo Musingo
    [2016] eKLR
  • Rajesh Rughani vs. Fifty Investments Limited & Another
    [2016] eKLR
  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others
    [2013] eKLR
  • Hakika Transport Services Limited vs. Isaac Onyango & Company, Advocates
    [2023] KECA 777 (KLR)
  • Patriotic Guards Limited vs. Safaricom Limited
    [2016] eKLR
Jurisdiction invoked
Rules 83, 84 and 85 of the Court of Appeal Rules, 2010/2022 (interlocutory application before the Court of Appeal)

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, "Isaac Onyango & Company Advocates v Hakika Transport Services Limited (Civil Application E015 of 2023) [2024] KECA 31 (KLR)", Case Analysis (2024). Notice of Motion dated March 8, 2023 (Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/31/eng@2024-01-26

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