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Court of AppealPartially AllowedNot stated in the judgment· [2024] KECA 36 (KLR)

Isaac Onyango & Company Advocates v Hakika Transport Services Limited (Civil Application E017 of 2023) [2024] KECA 36 (KLR)

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

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Kenya's Court of Appeal confirmed that an unused notice of appeal is deemed withdrawn under rule 85(1) once the extension-of-time application is dismissed.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Murgor, Laibuta and Odungal, JJ.A) on a Notice of Motion dated 8th March 2023 brought by Isaac Onyango & Company Advocates under rules 83 and 84 of the Court of Appeal Rules, 2010, seeking that Hakika Transport Services Limited's notice of appeal dated 5th October 2021 be marked as withdrawn under rule 85(1), or in the alternative struck out, with costs. The applicants argued that more than one-and-a-half years after lodging the notice, the respondent had neither requested proceedings nor instituted its appeal, and relied on authorities including Mae Properties, Habo Agencies, Rajesh Rughani and Salat v IEBC, as well as a prior ruling of Lesiit, JA dismissing the respondent's extension-of-time application. The respondent conceded at the hearing that, following the dismissal on 23rd June 2023 of its application for extension of time to file and serve its memorandum and record of appeal, its notice of appeal had become superfluous. The applicants withdrew the alternative prayer to strike out, presumably for non-compliance with the proviso to rule 86 of the 2022 Rules. The Court, applying rule 85(1) of the Court of Appeal Rules, 2022, held that the dismissal of the extension application left the notice of appeal flat on its face and devoid of procedural value, and ordered it deemed withdrawn with costs to the applicants. The application accordingly succeeded, though on the withdrawal prayer rather than striking out.

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

Under rule 85(1) of the Court of Appeal Rules, 2022, 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 so order on application by any other party; with the extension-of-time application dismissed, the notice was bereft of procedural value and was deemed withdrawn

Reasoning

The Court set out rule 85(1) verbatim and applied it. Having noted that the respondent's application for extension of time to file and serve its memorandum and record of appeal was dismissed on 23rd June 2023 (a fact counsel conceded), the Court held the notice of appeal was 'superfluous' and fell 'flat on its face'. The application by the party served with the notice was therefore properly brought under rule 85(1) and deserved to be allowed with costs.

p. 2

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 has been dismissed, its notice of appeal is liable to be deemed withdrawn under rule 85(1) of the Court of Appeal Rules, 2022

Court orders

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  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, 84 and 85 of the Court of Appeal Rules, 2022 (an 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 E017 of 2023) [2024] KECA 36 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/36/eng@2024-01-26

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