Gede Secondary School & 2 others v Mwambire (Suing as the Legal Representative of the Estate of Martha Paul Kazungu) & 2 others (Civil Appeal (Application) E006 of 2024) [2025] KECA 810 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a notice of appeal with no follow-up action is deemed withdrawn, ending any interim protection it supported.
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of Appeal dated 11th October 2022, in respect of which no record of appeal was filed, should be deemed to have been withdrawn under rule 85 of the Court of Appeal Rules, 2022
Key legal issues
#Whether a dormant Notice of Appeal should be deemed withdrawn under rule 85 of the Court of Appeal Rules, 2022
Yes. The 1st Respondent filed a Notice of Appeal on 12th October 2022 but took no further steps: no record of appeal, no letter bespeaking proceedings served, no participation in the application. The Court, moved by the applicants, deemed the Notice withdrawn and awarded costs to the applicants.
Rule 85 empowers the Court, on application by any party or on its own motion, to deem a notice of appeal withdrawn where the intended appellant fails to institute the appeal within the appointed time. The provision is an inbuilt case-management mechanism designed to clear the Court's records of notices lodged in jest or abandoned, especially where the appellant enjoys interim relief such as a stay or injunction. Here, despite an injunction granted on 20th January 2023 preserving the 1st Respondent's position pending appeal, no record of appeal was filed by 13th December 2023 and no response was filed or appearance entered in the application. The Notice could not subsist indefinitely.
Legal principles established
#- Under rule 85, where a party who has lodged a notice of appeal fails to institute an appeal within the appointed time, the notice is deemed withdrawn and the Court may so order on application by any party or on its own motion.
- Rule 85 is a case-management/clean-up provision; a notice of appeal left unbacked by an instituted appeal cannot subsist indefinitely and the party in default is liable for costs.
Court orders
#- 1.The Notice of Appeal dated 11th October 2022 and lodged on 12th October 2022 is deemed to have been withdrawn under rule 85
- 2.Costs of the application awarded to the applicants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court
- Not stated
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act and rule 85 of the Court of Appeal Rules, 2022
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.
This Court having been moved by the applicants pursuant to rule 85, we hereby deem the Notice of Appeal dated 11th October 2022 and lodged on 12th October 2022 as having been withdrawn. Costs of the application to the applicants.
It is a clean-up exercise born by the need for rationality in appellate litigation and practice
The party in default shall be liable to pay the costs arising therefrom on any persons on whom the notice of appeal was served
Issues in the judgment
#The judgment does not disclose the names of the applicants or the 1st respondent as party names, nor the case number of the motion or the underlying Environment and Land Court suit; only the deponent Josiah Mwachanya is named.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gede Secondary School & 2 others v Mwambire (Suing as the Legal Representative of the Estate of Martha Paul Kazungu) & 2 others (Civil Appeal (Application) E006 of 2024) [2025] KECA 810 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 3rd April 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/810/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.