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 AllowedNot stated in the judgment· [2024] KECA 363 (KLR)

Kibunja v Kirweya & 2 others (Civil Application E040 of 2022) [2024] KECA 363 (KLR)

Court of Appeal
12 April 2024
AMA. K. MurgorKLDr. K. I. LaibutaGOG. V. Odunga
1,616 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that a notice of appeal lapses if you don't file the actual appeal within 60 days — no exceptions without good reason.

What this practically means

#

Executive summary

#
This is an interlocutory application before the Court of Appeal at Mombasa seeking that Notices of Appeal served on the applicant on 17th June 2020 (undated) and 22nd June 2020 be struck out or deemed withdrawn. The underlying decision was a judgment delivered on 9th June 2020 by the Environment and Land Court at Mombasa (A. Omollo, J.) in favour of the applicant. The 1st and 2nd respondents lodged notices of appeal but for over two years took no steps to institute the appeal, and they neither responded to the motion nor appeared at the virtual hearing despite service. The Court (Murgor, Laibuta and Odunga, JJ.A.) considered rule 84 of the Court of Appeal Rules, under which an appeal is instituted by lodging a Memorandum and Record of Appeal within sixty days of the notice, subject to the proviso for time certified for obtaining proceedings. Relying on rule 85, and its own precedents including Mae Properties Ltd v Joseph Kibe, Salama Beach Hotel Ltd v Kenyariri & Associates, Quicklubes E.A. Ltd v Kenya Railways Corporation, John Mutai Mwangi v Mwenja Ngure and Mombasa Water Products Ltd v NIC Bank Ltd, the Court held that the deeming provision is a mandatory inbuilt case-management mechanism designed to purge speculative or 'holding' notices of appeal. Since none of the institution steps - seeking typed proceedings, a certificate of delay, or filing the record - were demonstrated, and no reasons for the delay were given, the Court deemed the notices withdrawn. The Court declined to address the strike-out limb as unnecessary. The motion succeeded with costs to the applicant, payable by the 1st and 2nd respondents jointly and severally.

Key legal issues

#
01

Whether the Notices of Appeal should be deemed withdrawn under rule 85 of the Court of Appeal Rules

Holding

Yes. The respondents took no steps to institute the appeal - no typed proceedings sought, no certificate of delay, no record of appeal filed - and offered no reasons for the delay; the notices are deemed withdrawn.

Reasoning

Rule 85 applies where circumstances exist from which the Court can deem a notice of appeal withdrawn. The steps required to institute an appeal are those prescribed by the Rules, and none were demonstrated: no application for typed proceedings, no certificate of delay, and no record of appeal was filed. No explanation for the over-two-year inaction was proffered. The respondents did not appear or respond despite service. The deeming provision is a mandatory case-management tool intended to rid the registry of speculative notices of appeal.

p. 2

Legal principles established

#
  • An appeal is instituted under rule 84 of the Court of Appeal Rules by lodging a Memorandum of Appeal and Record of Appeal in the appropriate registry within sixty days of the Notice of Appeal, subject to the proviso for time certified for obtaining proceedings, where the application for proceedings was made in writing within thirty days and served on the respondent.
  • Where a party who lodged a notice of appeal fails to institute the appeal within the appointed time, the notice is deemed withdrawn and the Court may, on its own motion or on application, so order under rule 85.
  • Timelines for taking appellate steps are indispensable; the Rules are expressed in clear and unambiguous terms and command obedience.

Court orders

#
  1. 1.The Notices of Appeal lodged on 17th June 2020 (the 1st being undated and the 2nd dated 22nd June 2020) are hereby deemed as having been withdrawn
  2. 2.The applicant is awarded the costs of the application, to be borne by the 1st and 2nd respondents jointly and severally

Authorities

#

Legislation

  • Court of Appeal Rulesrule 84
  • Court of Appeal Rulesrule 84(2)
  • Court of Appeal Rulesrule 85
  • Court of Appeal Rulesrule 81
  • Court of Appeal RulesRule 83 (former numbering, now rule 85(1))

Cases cited (5)

  • Mae Properties Ltd vs. Joseph Kibe and Another
    [2017] eKLR
  • Salama Beach Hotel Limited & 4 Others v Kenyariri & Associates Advocates & 4 Others
    [2016] eKLR
  • Quicklubes E. A. Limited v Kenya Railways Corporation
    [2014] eKLR
  • John Mutai Mwangi & 26 Others v Mwenja Ngure & 4 Others
    [2016] eKLR
  • Mombasa Water Products Limited v NIC Bank Limited & 2 others
    Civil Application No. E051 of 2021 [2022] KECA 523 (KLR)
On appeal from
Environment and Land Court, Mombasa
Jurisdiction invoked
Rule 85 of the Court of Appeal Rules (deeming provision) - inherent/appellate case-management jurisdiction over un-instituted appeals

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (4)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Kibunja v Kirweya & 2 others (Civil Application E040 of 2022) [2024] KECA 363 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/363/eng@2024-04-12

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