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Court of AppealPartially AllowedNot stated in the judgment (Notice of Motion dated March 8, 2023)· [2024] KECA 32 (KLR)

Isaac Onyango & Company Advocates v Hakika Transport Services Limited (Civil Application E018 of 2023) [2024] KECA 32 (KLR)

Court of Appeal
26 January 2024
AMA. K. MurgorKLDr. K. I. LaibutaGOG.V. Odunga
1,070 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a notice of appeal is deemed withdrawn when the appeal is never filed in time, and the defaulting party pays costs.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 orders that Hakika Transport Services Limited's notice of appeal, dated October 5, 2021 and lodged on October 7, 2021, be marked as withdrawn under rule 85(1), or in the alternative struck out with costs. The applicant argued that since lodging the notice the respondent had failed to request typed and certified proceedings or lodge its appeal, and that the notice was a delaying tactic. The respondent attributed the delay to an oversight by its former advocates and relied on a pending extension-of-time application. During the hearing the applicants withdrew the striking-out prayer, leaving only the deeming order under rule 85 of the 2022 Rules. The Court noted that the respondent's extension-of-time application had been dismissed on June 23, 2023, and counsel for the respondent conceded that the notice of appeal had become superfluous. The Court held that with the dismissal of the extension application, the notice of appeal fell flat on its face, was bereft of procedural value, and was liable to be deemed withdrawn under rule 85. The application was allowed: the notice of appeal was deemed withdrawn with costs to the applicant. The decision binds the parties; the binding rule is that a notice of appeal whose supporting extension application has been dismissed falls away and is deemed withdrawn under rule 85(1), with the defaulting party liable for costs under rule 85(2).

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) of the Court of Appeal Rules, 2022, and the defaulting party bears the costs under sub-rule (2)

Reasoning

Rule 85(1) of the 2022 Rules deems a notice of appeal withdrawn where the party fails to institute the appeal within the appointed time, whether on the Court's own motion or on application. Here the respondent filed the notice on October 7, 2021 but never filed the memorandum and record of appeal; its extension-of-time application was dismissed on June 23, 2023, rendering the notice superfluous and liable to be deemed withdrawn, with costs to the applicant.

p. 3

Legal principles established

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  • Where a party's application for extension of time to file and serve its memorandum and record of appeal is dismissed, its notice of appeal falls flat on its face and is liable to be deemed as having been withdrawn pursuant to rule 85 of the Court of Appeal Rules, 2022
  • Under rule 85(1) of the Court of Appeal Rules, 2022, 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; the defaulting party is liable to costs under sub-rule (2)

Court orders

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

Authorities

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Legislation

  • Court of Appeal Rulesrules 83 and 84 (2010 Rules)
  • Court of Appeal Rulesrule 85(1) (2010 Rules)
  • Court of Appeal Rulesrule 83 (2022 Rules)
  • Court of Appeal Rulesrule 84 (2022 Rules)
  • Court of Appeal Rulesrule 85 (2022 Rules)
  • 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 and 2022 (interlocutory application within the Court of Appeal's own procedural jurisdiction)

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 E018 of 2023) [2024] KECA 32 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated March 8, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/32/eng@2024-01-26

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