Igweta & another v Kathambi & 2 others (Civil Appeal (Application) E442 of 2024) [2025] KECA 457 (KLR)
The bottom line
#The Court of Appeal threw out a family's appeal for missing a 30-day filing deadline, cancelling their protection in a bitter burial dispute.
What this practically means
#Executive summary
#Key legal issues
#Deeming a notice of appeal withdrawn for failure to institute the appeal within the appointed time
The respondents, having obtained a conditional stay of execution requiring them to file their appeal within 30 days, failed to do so and offered no plausible explanation; the notice of appeal is therefore deemed withdrawn under Rule 85
Rule 85(1) of the Court of Appeal Rules provides that a party who lodges a notice of appeal but fails to institute the appeal within the appointed time is deemed to have withdrawn it, and the Court may so order on its own motion or on application. The respondents were duly served, did not attend, filed no replying affidavit and no submissions, so the applicants' uncontroverted factual assertions stood. Filing the appeal within the 30 days was an essential step; no acceptable reason excused the delay.
Consequential vacation of the stay of execution
The stay of execution granted on 26th July 2024 was conditional upon institution of the appeal within 30 days and could not be sustained once the appeal was deemed withdrawn
The stay of execution had been made conditional upon the institution of the appeal within 30 days. Once the notice of appeal was marked as withdrawn, there was no pending appeal to which the stay could attach. The Court therefore vacated the stay, with the practical consequence that the High Court's order releasing the body of the deceased to his two wives for burial at Kianjai/Kianjai/2585 could be executed.
Legal principles established
#- Where a party who has lodged a notice of appeal fails to institute the appeal within the appointed time, the notice of appeal is deemed withdrawn and any stay of execution granted in aid of that appeal falls away
- A stay of execution conditional on instituting an appeal within a fixed period cannot survive the lapse of that period without the appeal being filed
Court orders
#- 1.The notice of appeal dated 22nd May 2024 is marked as withdrawn under Rule 85 of the Court of Appeal Rules
- 2.The order for stay of execution granted on 26th July 2024 is vacated, as it cannot be sustained in the absence of the appeal
- 3.The respondents shall pay to the applicants the costs of the application dated 27th August 2024
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Court of Appeal Rules, Rule 85 (inherent supervisory power over appeals pending before the Court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Jimma v Kenya School of Law & another (Civil Application E724 of 2025) [2026] KECA 1590 (KLR)[2026] KECA 1590 (KLR)31 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Igweta & another v Kathambi & 2 others (Civil Appeal (Application) E442 of 2024) [2025] KECA 457 (KLR)", Case Analysis (2025). Application dated 27th August 2024 (Civil Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/457/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.