Mwangi & another (Suing as heirs and legal representatives of the Estate of Mwangi Gichuka - Deceased) v Gatundu (Sued as legal representative of the Estate of Gatundu Kariuki - Deceased) & 2 others (Civil Application 208 of 2018) [2024] KECA 621 (KLR)
The bottom line
#The Court of Appeal declared a seven-year-old notice of appeal withdrawn because the appellants never filed their appeal, and confirmed strike-out applications must be filed within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether a notice of appeal should be deemed withdrawn under Rule 85(1) after inordinate failure to institute the appeal
The notice of appeal dated 19th May 2015 was deemed withdrawn because the respondents never filed the record of appeal despite typed proceedings being ready since March 2016, and the suit before the High Court has since been concluded with a further appeal filed.
The respondents conceded notice that typed proceedings were ready in March 2016, yet nearly seven years later no corrections had been effected and no record of appeal was filed. There was no evidence of diligent efforts, such as letters to the Deputy Registrar. Further, the High Court suit was concluded and a separate appeal lodged, so keeping the notice alive served no useful purpose.
Whether an out-of-time application to strike out a notice of appeal is competent
An application to strike out a notice of appeal must be made within 30 days of service of the notice; one filed outside that period is incompetent and cannot be entertained.
Rule 86 (formerly Rule 84) imposes a mandatory 30-day window. The applicants did not file within it, so the alternative prayer failed. The court endorsed the holding in Salama Beach Hotel Ltd v Kenyariri quoting Joyce Bochere Nyamweya that failure to comply renders such an application fatally defective and liable to be struck out.
Legal principles established
#- An application to strike out a notice of appeal made outside the 30-day period in Rule 86 (formerly Rule 84) is incompetent and cannot be entertained
- Under Rule 85(1), a party who lodges a notice of appeal but fails to institute the appeal within the appointed time is deemed to have withdrawn the notice, and the Court may so order on its own motion or on application
- There is no requirement under Rule 89 for typed proceedings to be certified; only the decree or order requires certification
Court orders
#- 1.Prayer 1 of the application dated 14th July 2018 succeeds
- 2.The notice of appeal dated 19th May 2015 is deemed as withdrawn
- 3.The applicants shall have the costs of the application
- On appeal from
- High Court at Nairobi
- Jurisdiction invoked
- Rule 85(1) of the Court of Appeal Rules, 2022 (deemed withdrawal of a notice of appeal); Rule 86 (formerly Rule 84) governing applications to strike out
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi & another (Suing as heirs and legal representatives of the Estate of Mwangi Gichuka - Deceased) v Gatundu (Sued as legal representative of the Estate of Gatundu Kariuki - Deceased) & 2 others (Civil Application 208 of 2018) [2024] KECA 621 (KLR)", Case Analysis (2024). Civil Application No. of 2018 (application dated 14th July 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/621/eng@2024-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.