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Court of AppealAllowedNot stated in the judgment (Notice of Motion dated 3rd April 2024)

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)

Court of Appeal of Kenya
9 May 2025
1,261 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a notice of appeal with no follow-up action is deemed withdrawn, ending any interim protection it supported.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

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Executive summary

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This was a Court of Appeal (Mombasa) application under sections 3, 3A and 3B of the Appellate Jurisdiction Act and rule 85 of the Court of Appeal Rules, 2022, by the successful parties before the Environment and Land Court, whose judgment was delivered on 6th October 2022. The 1st Respondent had filed a Notice of Appeal on 12th October 2022, obtained an injunction on 20th January 2023 restraining the applicants from evicting him pending the intended appeal, but thereafter took no steps: no record of appeal was filed by 13th December 2023, no letter bespeaking proceedings was served, and the 1st Respondent neither appeared nor filed submissions in opposition to the motion. The Court applied its earlier decisions in John Mutai Mwangi v Mwenja Ngure and Judith Jemeli Kese, characterising rule 85 as an inbuilt case-management or clean-up provision that prevents litigants from parking a notice of appeal at the appeal gate while indefinitely enjoying interim protective orders. Holding that a notice of appeal cannot subsist indefinitely without an appeal being instituted, the Court, on the applicants' application, deemed the Notice of Appeal dated 11th October 2022 withdrawn and awarded the costs of the application to the applicants. The decision affirms that default under rule 85 attracts costs liability on the party in default.

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 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

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01

Whether a dormant Notice of Appeal should be deemed withdrawn under rule 85 of the Court of Appeal Rules, 2022

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application awarded to the applicants

The bench

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

majority

Wrote the judgment

majority

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

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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.

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.
p. 3Final orders - notice of appeal deemed withdrawn
It is a clean-up exercise born by the need for rationality in appellate litigation and practice
p. 3Purpose of rule 85
The party in default shall be liable to pay the costs arising therefrom on any persons on whom the notice of appeal was served
p. 2Costs consequence of rule 85

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.