Waitiki v Kenya Power & Lighting Co. Ltd (Civil Application E107 of 2023) [2025] KECA 874 (KLR)
The bottom line
#Kenya Power lost its chance to appeal a Kshs 21 million judgment after sitting on its appeal for two years — appeals must be filed on time in Kenya.
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- 1.Whether the respondent's notice of appeal should be deemed withdrawn under rule 85(1) for failure to institute the appeal within the appointed time
- 2.Whether the proviso to rule 84(1) excuses the respondent's delay in instituting the appeal
- 3.Whether the order for stay of execution made by the superior court should be set aside
Key legal issues
#Whether the notice of appeal should be deemed withdrawn under rule 85(1) of the Court of Appeal Rules, 2022
Yes. More than two years had passed since the notice of appeal was lodged with no record of appeal filed and no correspondence demonstrating diligence in pursuing certified proceedings; the Court exercised its discretion under rule 85(1) to deem the notice withdrawn.
The Court examined the proviso to rule 84(1), which excludes time certified by the registrar as required for preparation of copies of proceedings. It found the proviso cannot be a general excuse for inaction, operates only after a certificate of delay issues, and until then the intending appellant must give a satisfactory explanation for delay. The record contained no correspondence showing diligence, and the delay of over two years was inordinate. Deeming the notice withdrawn was therefore a proper exercise of discretion.
The mandatory character of the Court of Appeal Rules' timelines
The Court endorsed MAE Properties Limited v Joseph Kibe & Another, holding that the timelines in the Rules are expressed in clear terms and command obedience.
Relying on its earlier decision in MAE Properties, the Court reiterated that the Rules exist for the orderly administration of justice and that timelines for taking steps are indispensable to proper adjudication of appeals. Failure to comply with the timelines invites sure consequences. This supported the deeming of the notice of appeal as withdrawn under rule 85(1).
Legal principles established
#- The proviso to rule 84(1) does not excuse a party who lodges a notice of appeal and then fails to diligently pursue institution of the appeal; it operates only upon issuance of a certificate of delay, and until then the party must satisfactorily explain the delay.
- A party who fails to institute an appeal within the appointed time is deemed to have withdrawn the notice of appeal under rule 85(1), and the Court may so order on its own motion or on application.
- The timelines in the Court of Appeal Rules are indispensable and command obedience; failure to comply invites sure consequences.
Court orders
#- 1.The respondent's notice of appeal dated 14th October 2022 is deemed as having been withdrawn by dint of rule 85(1) of the Court of Appeal Rules, 2022
- 2.The costs of the Motion are borne by the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- ELC Case No. 87 of 2012
- Jurisdiction invoked
- Rules 84 and 85 of the Court of Appeal Rules, 2022
Relief refused
#Setting aside of the order for stay of execution of the judgment made by the superior court on 12th October 2023
The Motion was allowed only in part; the final orders made no provision for setting aside the stay order
Costs
The cost of the Motion be borne by the respondent
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.
To our mind, the proviso to rule 84(1) cannot be used as a general excuse by a party who appears to have lodged a notice of appeal and sat back doing nothing to pursue expeditious institution of the intended appeal.
the respondent's notice of appeal dated 14th October 2022 be and is hereby deemed as having been withdrawn by dint of rule 85(1) of the Court of Appeal Rules, 2022
that the cost of the Motion be borne by the respondent.
Before then, a party intending to appeal is bound to give satisfactory explanation for the delay.
Issues in the judgment
#The judgment reproduces rule 85(1) but mislabels it with the numbering '84. (1)', a typographical error in the quoted provision.
The judgment states the plaint was dated 14th May 2016 yet filed in ELC Case No. 87 of 2012, an internal inconsistency in dates.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waitiki v Kenya Power & Lighting Co. Ltd (Civil Application E107 of 2023) [2025] KECA 874 (KLR)", Case Analysis (2025). Civil Application (Mombasa) arising from ELC Case No. 87 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/874/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.