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Court of AppealPartially AllowedCivil Application No. E041 of 2024 (Motion dated 13th May 2024)

Wachira v Golden Tea Traders & 3 others (Civil Application E018 of 2024) [2025] KECA 254 (KLR)

Court of Appeal
21 February 2025
AMA. K. MurgorKLDr. K. I. LaibutaGNG. W. Ngenye-Macharia
2,040 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that filing an appeal record cannot save a notice of appeal filed late — the appeal was deemed withdrawn.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Mombasa on a Notice of Motion dated 13th May 2024 by Salome Wambui Wachira seeking that a Notice of Appeal be deemed as withdrawn or struck out. The 1st respondent did not participate, and the application proceeded against NCBA Bank (K) Limited, the 2nd respondent. The application arose from a judgment of the Environment and Land Court at Malindi delivered on 28th February 2020. The applicant argued that the 2nd respondent's Notice of Appeal and record of appeal were filed out of time, and that the 2nd respondent lost the right of appeal by having pursued a review application. The 2nd respondent contended that the application was out of time, moot since a record of appeal had been filed and assigned a serial number, and that the deeming provision becomes ineffective once a record is filed, relying on Esther Anyango Ochieng and KCB Bank v Said. The Court framed one issue: whether the Notice of Appeal was competent and properly filed. It found the notice on record was filed over one year outside the 14-day period prescribed by rule 77(2) and was therefore incompetent. It distinguished the authorities relied on by the 2nd respondent on their facts, holding that the filing of a record of appeal does not cure an incompetent notice of appeal. The Court allowed the application, deemed the Notice of Appeal dated 22nd July 2022 as withdrawn, and ordered the 2nd respondent to bear the costs. As a binding authority, the ruling establishes that a late notice of appeal cannot be saved by the subsequent filing of a record of appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Notice of Appeal is competent and properly filed before this Court

Key legal issues

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01

Competency of the Notice of Appeal filed outside the 14-day period under rule 77(2)

Holding

The Notice of Appeal, filed over one year after judgment, was incompetent and liable to be deemed withdrawn under rule 85(1); the filing of a record of appeal thereafter does not cure the defect.

Reasoning

The judgment appealed against was delivered on 28th February 2020, so the notice of appeal should have been lodged within 14 days. The notice on record was dated and filed on 16th December 2021, over a year late, without any application to admit it out of time. The 2nd respondent's reliance on Esther Anyango Ochieng and KCB Bank Kenya Limited v Said was unavailing because in those cases the striking-out application was out of time and the notice of appeal was filed on time respectively. The filing of the record of appeal in Civil Appeal No. E041 of 2024 could not cure the incompetent notice.

p. 4
02

Whether the deeming provision under rule 85(1) becomes ineffective once a record of appeal has been filed

Holding

Rejected: the subsequent filing of a record of appeal does not save an incompetent notice of appeal.

Reasoning

The 2nd respondent argued, relying on Esther Anyango Ochieng and KCB Bank v Said, that once a record of appeal is filed a notice of appeal cannot be deemed withdrawn. The Court distinguished both decisions on their facts: in Ochieng the striking-out application was filed outside the 30-day period, and in KCB the notice of appeal was filed on time. Neither authority addressed a notice of appeal filed out of time, so the argument failed and the application was allowed.

p. 4

Legal principles established

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  • A Notice of Appeal must be filed within 14 days of the decision appealed against; a notice filed outside that period without an extension is incompetent and may be deemed withdrawn under rule 85(1).
  • A notice of appeal deemed withdrawn under rule 85(1) may be so treated on the court's own motion or on application by any other party.
  • The filing of a record of appeal does not cure an incompetent notice of appeal filed out of time.
  • Parties are bound by their pleadings, and the court will decide only on what is on the record.

Court orders

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  1. 1.The application against the 1st respondent was withdrawn and allowed with no orders as to costs
  2. 2.The application dated 13th May 2024 is allowed and the Notice of Appeal dated 22nd July 2022 is deemed as withdrawn
  3. 3.The costs of the application to be borne by the 2nd respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AM
majority
KL
majority
GN
majority
Jurisdiction invoked
Court of Appeal Rules, 2022, rule 85(1)

Relief refused

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Prayer that the Notice of Appeal dated 22nd July 2022 be struck out

Abandoned by the applicant at the hearing of the application

p. 4

Costs

The costs will be borne by the 2nd respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, we find that the applicant’s application dated 13th May 2024 is meritorious. It is hereby allowed in the result that the Notice of Appeal dated 22nd July 2022 is hereby deemed as withdrawn. The costs will be borne by the 2nd respondent.
p. 4Final orders - deeming of notice of appeal as withdrawn
However, the Notice of Appeal was filed on 16th December 2021, which is a clear testament that it is incompetent for having been filed outside the 14 days’ period by over one year.
p. 4Incompetency of notice of appeal filed outside rule 77(2)
in as much as the Record of Appeal was filed on 22nd October 2024 in Civil Appeal No. E041 of 2024, it does not cure the incompetent Notice of Appeal filed.
p. 4Record of appeal does not cure incompetent notice of appeal

Issues in the judgment

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material

Discrepancy in the date of the Notice of Appeal: the annexed notice is dated 16th December 2021 while the application and the final orders refer to a notice dated 22nd July 2022.

minor

Internal inconsistency on the review application: the applicant deposed that a ruling dismissing it was delivered on 9th January 2023, while the 2nd respondent deposed that it was withdrawn on 17th December 2021 with no ruling emanating from it.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Wachira v Golden Tea Traders & 3 others (Civil Application E018 of 2024) [2025] KECA 254 (KLR)", Case Analysis (2025). Civil Application No. E041 of 2024 (Motion dated 13th May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/254/eng@2025-02-21

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