Anthony Muhanji v Kenya Ports Authority
The bottom line
#Kenya Ports Authority's appeal collapsed because it filed late without extension of time, though the court could not strike out its unserved notice of appeal due to a 30-day deadline.
What this practically means
#Executive summary
#Key legal issues
#Competency of a late application to strike out a notice of appeal
The application to strike out the notice of appeal for non-service was time-barred by the proviso to Rule 86 and therefore could not be entertained.
Rule 86 permits a person affected by an appeal to apply to strike out a notice of appeal, but the proviso bars such an application after 30 days from service of the notice or record of appeal. The notice dated 26th June 2023 was never served; the applicant became aware of it when served with the stay application dated 26th September 2023. The striking-out application of 13th June 2024 was far outside the 30-day window, so the court was constrained to dismiss that limb.
Deemed withdrawal of a notice of appeal under Rule 85
Having failed to institute the appeal within the appointed time and without extension of time, the respondent's notice of appeal was deemed withdrawn and the memorandum and record of appeal were struck out as incompetent.
Rule 84(1) requires an appeal to be instituted by lodging a memorandum and record of appeal within 60 days of the notice of appeal, subject to the proviso for time certified as required for obtaining proceedings. At the time of the application of 13th June 2024, one year after the notice, no memorandum or record of appeal had been filed and no extension of time had been sought or granted. Rule 85 therefore applied: the notice was deemed withdrawn. The record of appeal filed on 8th August 2024, relying on a certificate of delay dated 29th July 2024, could not cure the default.
Legal principles established
#- An application to strike out a notice of appeal on the ground of non-service must be brought within 30 days of the date of service of the notice of appeal or record of appeal; beyond that, the competence of the notice of appeal cannot be questioned.
- Where a party who lodges a notice of appeal fails to institute the appeal within the appointed time, the notice of appeal is deemed withdrawn and any memorandum and record of appeal filed without extension of time is incompetent and liable to be struck out.
Court orders
#- 1.The notice of appeal dated 26th June 2023 is deemed to have been withdrawn under Rule 85
- 2.The memorandum and record of appeal are struck out as incompetent
- On appeal from
- Employment and Labour Relations Court, Mombasa
- Mombasa ELRC cause (judgment delivered 19th June 2023)
- Jurisdiction invoked
- Rules 49, 59(2), 82, 83, 84, 85, 86 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anthony Muhanji v Kenya Ports Authority", Case Analysis (2025). Mombasa Civil Appeal (Appl.) No. E091 of 2023 (application dated 13th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1567/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.