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Court of AppealAllowedCourt of Appeal application arising from Nakuru ELC No. 416 of 2017 (notice of motion dated 27th February 2020)

Kibowen v Waweru & 7 others (Civil Application 21 of 2019) [2024] KECA 734 (KLR)

Court of Appeal of Kenya
14 June 2024
PKP. O. KiageAMA. K. Murgor
781 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Filing a notice of appeal in Kenya buys you only 60 days to actually lodge the appeal — miss it and your appeal is deemed withdrawn.

What this practically means

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Executive summary

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This is a Court of Appeal ruling in an application by Stephen Kibowen seeking an order that an undated notice of appeal lodged by the respondents in the Environment and Land Court on 5th December 2019 be deemed withdrawn under Rules 82 and 83 of the Court of Appeal Rules, 2010 (now Rules 84 and 85). The respondents had lost in the High Court at Nakuru on 3rd December 2019 and filed a notice of appeal but never instituted the appeal within the 60 days prescribed by Rule 84(1), which expired on 26th February 2020. The applicant relied on Mae Properties Ltd v Joseph Kibe for the position that a notice of appeal dies a natural death after 60 days unless revived by the proviso to Rule 84(1) or an extension under Rule 4, and on Jasbir Singh Rai v Tarlochan Singh Rai for costs. Though served, the respondents filed no response. The Court held that Rule 84(1) requires lodging of a memorandum of appeal, record of appeal, prescribed fee and security for costs within 60 days, and that under Rule 85 default results in the notice being deemed withdrawn, with the proviso to Rule 84(1) unavailable absent a written request for proceedings within 30 days copied to the respondent. Allowing the motion, the Court deemed the notice of appeal withdrawn and awarded the applicant the costs. The ruling was delivered late, on 14th June 2024, pursuant to Rule 34(4), Koome JA having ceased to be a judge upon assuming office of Chief Justice, with the delay attributed to a record-keeping error.

Key legal issues

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Consequences of failure to institute an appeal within 60 days of filing a notice of appeal

Holding

Where no appeal is instituted within the 60 days prescribed by Rule 84(1), the notice of appeal is deemed withdrawn under Rule 85 and the Court may so order on its own motion or on application, with costs to the party in default.

Reasoning

Rule 84(1) requires an intending appellant to lodge, within 60 days, a memorandum of appeal, the record of appeal, the prescribed fee and security for costs. The proviso excludes only time certified by the Registrar for preparation of proceedings, and only where proceedings were requested in writing within 30 days and the request copied to the respondent. The respondents, though served, filed no response and did not institute the appeal; Rule 85's consequences are unequivocal. The Court followed Mae Properties on the natural death of a notice of appeal.

p. 2

Legal principles established

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  • A notice of appeal under the Court of Appeal Rules lapses unless the appeal is instituted within 60 days by lodging a memorandum of appeal, record of appeal, prescribed fee and security for costs; upon default the notice is deemed withdrawn.
  • The proviso to Rule 84(1) excluding certified time applies only where the party requested a copy of the proceedings in writing within 30 days of the decision and copied the request to the respondent.

Court orders

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  1. 1.The notice of appeal lodged on 5th December 2019 is deemed as withdrawn
  2. 2.The applicant shall have the costs of the motion
On appeal from
Environment and Land Court (High Court)
Nakuru ELC No. 416 of 2017
Jurisdiction invoked
Rules 82, 83, 84 and 85 of the Court of Appeal Rules, 2010 (now Rules 84 and 85), and Rule 34(4) on delivery

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, "Kibowen v Waweru & 7 others (Civil Application 21 of 2019) [2024] KECA 734 (KLR)", Case Analysis (2024). Court of Appeal application arising from Nakuru ELC No. 416 of 2017 (notice of motion dated 27th February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/734/eng@2024-06-14

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