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Court of AppealPartially AllowedCivil Application (Voi HCCA No. E029 of 2022 appeal)· [2025] KECA 2105 (KLR)

Juliana Mwende Simon & 2 others v China Road & Bridge Corp of Kenya

Court of Appeal of Kenya
5 December 2025
1,308 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that an appeal not filed on time is treated as abandoned, so the Voi High Court judgment stands.

What this practically means

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Executive summary

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This was an interlocutory application before the Court of Appeal at Mombasa under rule 85 of the Court of Appeal Rules, 2022, in which Juliana Mwende Simon sought to have a notice of appeal lodged by China Road & Bridge Corporation of Kenya on 27 July 2023 against a High Court judgment at Voi (George Dulu, J, delivered 14 July 2023 in Voi HCCA No. E029 of 2022) deemed withdrawn. The application was undefended by affidavit or submissions; the respondent's counsel offered only the oral explanation that the client's file had not been obtained from previous advocates. The court found the notice of appeal was never served within 7 days as required by rule 79(1); no application for certified proceedings was made or served under the proviso to rule 84(1) and rule 84(2); and no record of appeal was filed within 60 days. The respondent had also never sought extension of time. Applying its own precedents on the mandatory character of the Court's timelines, the Court allowed the application with costs and deemed the notice of appeal withdrawn under rule 85. The effect is that the intended appeal cannot proceed, and the underlying High Court judgment stands. The decision binds subordinate courts and parties as an application of the Court's deemed-withdrawal regime and its strict-compliance jurisprudence on appellate timelines.

Key legal issues

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01

Effect of default in instituting an appeal under rule 85

Holding

The notice of appeal is deemed withdrawn where the appellant fails to institute the appeal within the appointed time, and the court may so declare on application by any party.

Reasoning

The respondent lodged a notice of appeal on 27 July 2023 but did not serve it within 7 days as required by rule 79(1), did not bespeak or serve proceedings within the periods prescribed by rule 84, and did not file the record of appeal within 60 days. It also never sought extension of time. Under rule 85, such a party is deemed to have withdrawn the notice, and the court may so order on its own motion or on a party's application.

p. 3
02

Strict adherence to the Court's procedural timelines

Holding

The timelines in the Court of Appeal Rules are indispensable to the orderly administration of justice and command obedience; non-compliance has sure consequences.

Reasoning

Relying on its own precedents, the court reaffirmed that procedural timelines serve the constitutional and statutory objective of timely, efficient and cost-effective justice. A rule of practice is almost always based on legal principle, and hardship caused by strict adherence should be met by seeking amendment of the rule, not by wishing the rule away. No extension of time having been sought, the defaults stood unregularised.

p. 3

Legal principles established

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  • A party who lodges a notice of appeal but fails to institute the appeal within the appointed time is deemed to have withdrawn the notice, and the court may so order on its own motion or on application; the defaulting party is liable for costs
  • Timelines in the Court of Appeal Rules are mandatory and must be strictly obeyed; failure to comply invites sure consequences

Court orders

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  1. 1.The applicant's notice of motion dated 14th November 2024 is allowed with costs
  2. 2.The respondent's notice of appeal dated 27th July 2023 is deemed as having been withdrawn pursuant to rule 85 of the Court of Appeal Rules, 2022
On appeal from
High Court of Kenya at Voi
Voi HCCA No. E029 of 2022
Jurisdiction invoked
Rule 85 of the Court of Appeal Rules, 2022 (deemed withdrawal of notice of appeal for default in instituting appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Juliana Mwende Simon & 2 others v China Road & Bridge Corp of Kenya", Case Analysis (2025). Civil Application (Voi HCCA No. E029 of 2022 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2105/eng@2025-12-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.