Dahman & another (As Administrators of the Estate of Mariam Binti Said) v Sudi
The bottom line
#Kenya's Court of Appeal confirmed that an appeal not filed on time is automatically treated as withdrawn, ending a years-long land dispute stalemate.
What this practically means
#Executive summary
#Key legal issues
#Applicability of the proviso to rule 86
The applicants' strike-out application, filed over three years after service of the Notice of appeal, was out of time and rule 86 was inapplicable.
The proviso to rule 86 requires a strike-out application to be brought within 30 days of service of the notice of appeal or record of appeal. The applicants conceded service on 31st October 2019 but filed on 26th June 2023. The rule was therefore inapplicable, and the court could not strike out the notice under that rule.
Deeming a Notice of appeal withdrawn under rule 85
Where a party fails to institute an appeal within the appointed time, the notice of appeal is deemed withdrawn, and the Court may so declare on application, with costs.
Rule 85 prescribes in mandatory, peremptory terms that a party who fails to institute an appeal within the appointed time shall be deemed to have withdrawn the notice. The deeming operates automatically on lapse of time. The respondent filed no record of appeal for over three years, offered no explanation, and did not respond to the application; the Court therefore intervened under rule 85.
Legal principles established
#- Under rule 85, a party who fails to institute an appeal within the appointed time is deemed to have withdrawn the notice of appeal, and the deeming effect sets in automatically upon lapse of time
- The power to strike out an appeal is discretionary and case-specific
Court orders
#- 1.The Notice of Motion dated 26th June 2023 is allowed
- 2.The respondent's Notice of appeal dated 22nd October 2019 and lodged on 23rd October 2019 is deemed as withdrawn with costs to the applicants
- On appeal from
- Environment and Land Court at Malindi
- Malindi ELC Case Number 24 of 2012
- Jurisdiction invoked
- Rules 85 and 86 of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dahman & another (As Administrators of the Estate of Mariam Binti Said) v Sudi", Case Analysis (2024). Civil Application E026 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1911/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.