Kenneth Kimari Gitere & 2 others v Gitere Kahura Investments Ltd
The bottom line
#Kenya's Court of Appeal confirmed that unused notices of appeal automatically 'die' after 60 days, and later filings cannot revive them.
What this practically means
#Executive summary
#Key legal issues
#Operation of the deeming provision in rule 83
Once the period for instituting an appeal lapses without an appeal being lodged, the notice of appeal is deemed withdrawn by operation of law, and the court's role is merely to make the formal order recognizing that consequence.
The court relied on its settled jurisprudence, notably Mae Properties Ltd v Joseph Kibe and John Mutai Mwangi, holding that rule 83 is an inbuilt case-management mechanism designed to clear dormant notices of appeal and prevent litigants from indefinitely parking at the appeal gate while enjoying interim relief.
Effect of a variation of the impugned directions on the first notice of appeal
The variation of directions by Ochieng, J. on 30th March 2017 altered the substratum of the intended appeal but did not of itself preserve the notice of appeal; the respondent neither withdrew it nor instituted an appeal or sought extension of time.
The court accepted that the variation substantially altered the substratum of the intended appeal, but held that this did not indefinitely preserve the notice. Absent voluntary withdrawal, institution within time, exclusion of time, or extension of time, rule 83 inevitably became operative.
Whether non-supply of typed proceedings excused the delay on the second notice
Beyond the initial bespeaking letter, the respondent adduced no evidence of follow-up and no certificate of delay, so it failed to discharge its burden of showing the delay was attributable to the registry.
The court held that while time taken to prepare proceedings may be excluded under rule 82, the appellant must apply in writing, serve the request, and prove compliance. The respondent produced only a bespeaking letter dated 30th October 2018, with no reminders, correspondence, or certificate of delay, and could not explain how it obtained proceedings for the substantive appeal but not the interlocutory one.
Whether the interlocutory issues were subsumed into the substantive appeal
The memorandum of appeal in Nairobi Civil Appeal No. E481 of 2021 challenges only the ruling of Majanja, J. and none of the interlocutory rulings underlying the two notices, so the notices were not subsumed.
A perusal of the memorandum of appeal dated 24th August 2021 showed its grounds were directed exclusively at the ruling striking out the suit after leave to continue as a derivative action was refused. None of the grounds challenged the directions of 16th June 2016, their variation, or Kasango, J.'s ruling of 30th October 2018.
Legal principles established
#- The deeming consequence under rule 83 operates automatically upon lapse of the prescribed period; a notice of appeal dies a natural death unless an appeal is instituted in time, time is excluded under rule 82, or time is extended.
- A subsequent appeal cannot retrospectively revive notices of appeal already deemed withdrawn under rule 83.
- The intending appellant bears the burden of demonstrating that delay in supplying proceedings is attributable to the court registry, including producing a certificate of delay and evidence of follow-up.
Court orders
#- 1.The notices of appeal dated 28th June 2016 and 9th November 2018 are deemed withdrawn pursuant to rule 83 of the Court of Appeal Rules, 2010
- 2.The applicants shall have the costs of the application
- Jurisdiction invoked
- Rules 83, 42 and 43(1) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenneth Kimari Gitere & 2 others v Gitere Kahura Investments Ltd", Case Analysis (2026). Application dated 9th August 2021 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1135/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.