Jared Otieno Opiata v National Bank of Kenya Limited
The bottom line
#Kenya's Court of Appeal confirmed that a party who files a notice of appeal but never actually files the appeal loses it — the notice is deemed withdrawn.
What this practically means
#Executive summary
#Key legal issues
#Competence of an application to strike out a notice of appeal brought outside the 60-day window under the proviso to Rule 84
The application was ideally time-barred since it was lodged about four months after the lapse of the 60-day period, but the respondent's non-response allowed the court to exercise its own motion powers
The applicant was an affected person as respondent in the intended appeal, but the application filed on 15th November 2021 fell outside the 60 days permitted under the proviso to Rule 84. The respondent did not appear to raise the issue of competence, so the court treated the application undefended and exercised its power under Rule 85 on its own motion rather than dismissing the application as incompetent.
Whether a notice of appeal should be deemed withdrawn where the appellant fails to file the record of appeal within the prescribed time
Yes. The respondent failed to lodge the record of appeal by 7th June 2021 despite collecting typed proceedings on 9th April 2021, and its failure to defend the application demonstrated loss of interest in the appeal
Rule 85 deems a notice of appeal withdrawn where the appeal is not instituted within the appointed time. The court relied on Gamma Villa Limited v Kenya Ports Authority and Karurie v Kamau, holding that Rule 85 serves the dual purpose of curbing abuse of process and promoting efficient case management. A litigant who lodges a notice of appeal and then goes to sleep should not be entertained by the court.
Legal principles established
#- Where a party lodges a notice of appeal but fails to institute the appeal within the appointed time, the notice of appeal is deemed withdrawn and the Court may so order on its own motion or on application
- Failure to take the essential steps towards instituting an appeal, including lodging the record of appeal within the prescribed time, should result in the notice of appeal being deemed withdrawn; the court may act suo motu
- A party in default under Rule 85 is liable to pay the costs arising from the default to persons on whom the notice of appeal was served
Court orders
#- 1.The notice of appeal dated 19th May 2020 filed by National Bank of Kenya Limited is deemed to have been withdrawn
- 2.No order as to costs
- On appeal from
- High Court (referred to as 'the superior court')
- Jurisdiction invoked
- Rules 82, 83, 84 and 85 of the Court of Appeal Rules (2010 and 2022)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jared Otieno Opiata v National Bank of Kenya Limited", Case Analysis (2026). Not stated in the judgment (application dated 15th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/848/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.