Mohammed v Adan & 3 others (Civil Appeal (Application) E680 of 2023) [2025] KECA 301 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that an appeal with a properly filed record of appeal cannot be killed off by claiming its notice of appeal was abandoned.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Appeal dated 27th April 2023 should be deemed withdrawn under Rules 84 and 85 of the Court of Appeal Rules
- 2.Whether the Record of Appeal was filed within the prescribed period, given the Certificate of Delay
- 3.Whether the application, though brought under Rule 85, is in substance one under Rule 86 and therefore out of time
Key legal issues
#Effect of a filed record of appeal on an application to deem a notice of appeal withdrawn
Once a record of appeal has been duly filed and served, the notice of appeal cannot be deemed withdrawn; the appeal has been instituted and the Rule 85 jurisdiction does not lie.
The court endorsed Mae Properties and Esther Anyango Ochieng, holding that Rule 85 targets speculative or holding-mode notices of appeal. Where the substantive appeal exists in verity, deeming the notice withdrawn would be surreal. Here the record was filed and served, proceedings had been applied for under the proviso to Rule 84, and the Deputy Registrar certified the period required for preparation.
Characterisation of the application as a disguised Rule 86 striking-out application
An application alleging an incomplete or deficient record and that the appeal does not lie is essentially a striking-out application under Rule 86, subject to a thirty-day limitation, and cannot be recast as a Rule 85 application to escape that limit.
The grounds on the face of the application - incompleteness, deficiency, filing out of time, absence of certificate of delay, and that the appeal does not lie - are the classic grounds for striking out. Rule 85 was invoked to circumvent the thirty-day period. The certificate of delay, filed in a supplementary record, certified the delay in preparing proceedings, and the claim that it was a sham was unsupported by material.
Legal principles established
#- Where a record of appeal has in fact been filed and served, a court should not deem the notice of appeal withdrawn under Rule 85; the deeming power is meant only for speculative notices unaccompanied by a substantive appeal.
- An application that in substance seeks striking out of a notice of appeal must be brought within thirty days under Rule 86; invoking Rule 85 to avoid that limitation is improper.
Court orders
#- 1.The application dated 11th December 2023 is dismissed
- 2.Costs of the application awarded to the appellant and to the 2nd and 4th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Court of Appeal Rules, Rules 84(1), (2) and 85(1), (2) (interlocutory application jurisdiction of the Court of Appeal)
Relief refused
#Order that the Notice of Appeal dated 27th April 2023 be deemed withdrawn
A duly filed and served record of appeal exists; the appellant applied for proceedings under the proviso to Rule 84 and the delay was certified by the Deputy Registrar; the application is in substance a Rule 86 striking-out application filed out of time
Costs
The application is dismissed with costs to the appellant and to the 2nd and 4th respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Where none has been filed, then the Court ought, without much ado, to deem the notice of appeal as having been withdrawn.
there is merit in the argument by counsel for the appellant that the application is essentially one seeking to strike out the notice of appeal under Rule 86
In our view, the record of appeal was filed within the prescribed period.
All in all, there is no merit in this application. It is accordingly dismissed with costs to the appellant and to the 2nd and 4th respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohammed v Adan & 3 others (Civil Appeal (Application) E680 of 2023) [2025] KECA 301 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 11th December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/301/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.