Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNotice of Motion dated 8th March 2023 (Civil Application)· [2024] KECA 33 (KLR)

Isaac Onyango & Company Advocates v Hakika Transport Services Limited (Civil Application E016 of 2023) [2024] KECA 33 (KLR)

Court of Appeal of Kenya
26 January 2024
AMA. K. MurgorKLDr. K. I. LaibutaGOG. V. Odunga
1,070 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that a stale notice of appeal is treated as withdrawn when the party fails to file the appeal in time.

What this practically means

#

Executive summary

#
This was an application, not an appeal, brought by Isaac Onyango & Company Advocates under rules 83 and 84 of the Court of Appeal Rules, 2010, seeking to have Hakika Transport Services Limited's notice of appeal dated 5th October 2021 deemed withdrawn or, alternatively, struck out. The applicant complained that, more than a year and a half after lodging its notice of appeal, the respondent had neither requested proceedings nor instituted its appeal. The respondent acknowledged overlooking procedural steps, having instructed new advocates who filed an extension-of-time application. At the hearing, the applicant withdrew the alternative prayer to strike out the notice, apparently for non-compliance with the proviso to rule 86 of the 2022 Rules, and the respondent conceded the withdrawal. The decisive factor was the respondent's concession that its application for extension of time to file and serve the memorandum and record of appeal had been dismissed on 23rd June 2023, rendering the notice of appeal superfluous. Applying rule 85(1) of the Court of Appeal Rules, 2022, which deems a party who fails to institute an appeal within the appointed time to have withdrawn its notice of appeal, the Court held that the notice 'falls fiat on its face' and was bereft of procedural value. The Court allowed the application, deeming the notice of appeal withdrawn pursuant to rule 85(1), with costs to the applicant. The bench of Murgor, Laibuta and Odunga, JJA delivered a single unanimous judgment at Nairobi on 26th January 2024.

Key legal issues

#
01

Consequences of failure to institute an appeal within the appointed time under rule 85

Holding

A notice of appeal whose appeal was never instituted, and whose related extension-of-time application was dismissed, is deemed withdrawn under rule 85(1) of the Court of Appeal Rules, 2022.

Reasoning

Rule 85(1) of the 2022 Rules deems a party who lodges a notice of appeal but fails to institute an appeal within the appointed time to have withdrawn the notice, and empowers the Court, on its own motion or on application, to make such an order. The respondent's extension-of-time application had been dismissed, leaving the notice of appeal with no procedural value. Sub-rule (2) makes the defaulting party liable to costs.

p. 2

Legal principles established

#
  • Where a party who has lodged a notice of appeal fails to institute an appeal within the appointed time, that party is deemed to have withdrawn the notice of appeal and the Court may so order on its own motion or on application; where the party's application for extension of time has been dismissed, the notice of appeal is liable to be deemed withdrawn.

Court orders

#
  1. 1.The respondent's notice of appeal dated 5th October 2021 and lodged on 7th October 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
Jurisdiction invoked
Rules 83 and 84 of the Court of Appeal Rules, 2010 and Rule 85 of the Court of Appeal Rules, 2022 (intra-court application, not an appeal under Article 163(4))

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Isaac Onyango & Company Advocates v Hakika Transport Services Limited (Civil Application E016 of 2023) [2024] KECA 33 (KLR)", Case Analysis (2024). Notice of Motion dated 8th March 2023 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/33/eng@2024-01-26

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