Warui & another v HFC Ltd & 2 others (Civil Application E239 of 2021) [2026] KECA 1523 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a dormant appeal and lifted the injunction protecting it — waiting for court staff is no excuse for inaction.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a party who has applied for certified copies of the proceedings and judgment or ruling is at liberty to sit back and claim that he cannot do anything towards the filing of an appeal until he had heard from the Deputy Registrar.
- 2.Whether the notice of appeal dated 2nd July 2021 should be deemed withdrawn under rule 85 of the Court of Appeal Rules for failure to file the record of appeal within the prescribed period.
- 3.Whether the orders of injunction issued by the Court on 19th May 2022 ought to be vacated consequentially upon the deemed withdrawal of the notice of appeal.
Key legal issues
#Effect of an application for proceedings under the proviso to rule 84 on the sixty-day period for lodging an appeal.
Applying for proceedings stops the sixty-day clock only until the Deputy Registrar notifies that certified copies are ready for collection; it does not convert the period into an indefinite one, nor can it override the constitutional imperative that justice shall not be delayed.
The Court read the proviso to rule 84 purposively. It offers parties a reasonable period beyond sixty days because competing requests mean proceedings cannot always be availed instantly. But the proviso cannot be read to suspend the timeline indefinitely until the registry acts, for that would defeat Article 159(2)(b) of the Constitution and render the sixty-day requirement meaningless. The proviso shields reasonable delay in obtaining copies; it does not license appellants to lodge appeals at their leisure and sweet convenience.
Whether an appellant who has applied for proceedings may simply await action by the Deputy Registrar.
No. Diligence is a continuing personal obligation of the appellant, who must actively follow up on the preparation of proceedings and cannot causally transfer responsibility to the Deputy Registrar.
The Court held that applying for proceedings merely pauses the sixty-day clock until notification of readiness; it does not excuse an appellant from actively pursuing the copies. On the facts, the appellants wrote only a single reminder letter on 8th August 2023, after the striking-out application had been served, then lapsed again, offering no other effort even while the application was pending. Passivity of that order, enjoyed under the protection of an injunction, amounts to inexcusable indolence the rules do not protect.
Consequences of a long-unprosecuted notice of appeal: deemed withdrawal under rule 85 and vacatur of interim orders.
A notice of appeal not prosecuted within the prescribed time may be deemed withdrawn; the interlocutory injunctions granted in aid of the intended appeal fall with it, and costs follow the successful striking-out application.
Weighing the lapse of almost five years since the notice of appeal, the failure to file any record of appeal even after service of the striking-out application, the minimal follow-up on the proceedings, and the fact that the appellants enjoyed an injunction throughout while disregarding their obligation to prosecute the appeal, the Court found the striking-out eminently deserved. Deemed withdrawal under rule 85 carries the consequential vacatur of orders granted in aid of the intended appeal, so a respondent is not left indefinitely restrained with no appeal on file.
Legal principles established
#- A party who has applied for certified copies of the proceedings may not sit back and wait for the Deputy Registrar; the obligation to lodge an appeal with due dispatch is the appellant's own and cannot be transferred to the Deputy Registrar.
- The proviso to rule 84 of the Court of Appeal Rules does not create an open-ended period for filing an appeal and cannot override the constitutional directive in Article 159(2)(b) that justice shall not be delayed.
- A notice of appeal left unprosecuted for years while the appellant enjoys interim orders may be deemed withdrawn under rule 85, with the interim orders vacated and costs visited on the indolent party.
Court orders
#- 1.The notice of motion dated 30th August 2023 is allowed.
- 2.The notice of appeal dated 2nd July 2021 is deemed to have been withdrawn.
- 3.The orders of injunction issued by the Court on 19th May 2022 are vacated.
- 4.Costs of the application are awarded to the 1st respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Application within an intended appeal under the Court of Appeal Rules (rules 77(2), 84 and 85); the Court exercised rule 85's power to deem a notice of appeal withdrawn, guided by the constitutional value in Article 159(2)(b) of the Constitution.
Relief refused
#The appellants' bid to keep the notice of appeal dated 2nd July 2021 alive despite never filing the record of appeal.
The Court found the appellants indolent; the duty to lodge an appeal with due dispatch rests on the appellant and cannot be transferred to the Deputy Registrar, so the application to strike out was eminently deserved.
Continuation of the orders of injunction issued by the Court on 19th May 2022 pending the intended appeal.
Consequential upon the deemed withdrawal of the notice of appeal; the appellants had enjoyed the injunctions while disregarding their obligation to file the appeal.
Costs
Costs of the application are awarded to the 1st 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.
In the event, the notice of motion dated 30th August 2023 is hereby allowed with the consequence that the notice of appeal dated 2nd July 2021 is hereby deemed to have been withdrawn. The orders of injunction issued by this Court on 19th May 2022 are hereby vacated. Costs of the application are awarded to the 1st respondent. It is so ordered.
As far as we can tell, the proviso to rule 84 was never intended to obliterate the constitutional value and principle vividly expressed in Article 159(2) (b) of the Constitution that justice shall not be delayed.
The obligation is on an appellant to lodge an appeal with due dispatch and such party cannot causally transfer responsibility to the Deputy Registrar.
However, where a party has applied for proceedings in the manner provided in the proviso to rule 84, the sixty days start to run when the party has been notified by the Deputy Registrar that certified copies of the proceedings and judgment or ruling are ready for collection.
In this case, it is plainly obvious that the appellants have been most indolent and have made no serious efiort to follow up on the proceedings, because they have in their favour an order of injunction.
Issues in the judgment
#Internal date inconsistency: the affidavit supporting the motion is described as sworn on 30th August 2021, whereas the motion it supports is dated 30th August 2023 (confirmed in the final orders). The year of the affidavit appears to be a typographical error in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Warui & another v HFC Ltd & 2 others (Civil Application E239 of 2021) [2026] KECA 1523 (KLR)", Case Analysis (2026). Not stated in the judgment (determined on a Notice of Motion dated 30th August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1523/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.