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Court of AppealDismissedCivil Appeal (Application) E235 of 2023

Kimanzi & 2 others v Kimanthi

Court of Appeal
25 September 2026
MNMumbi Ngugi
1,612 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Kenya's Court of Appeal confirmed that an appeal not filed within 60 days is automatically treated as withdrawn—no extra applications needed.

What this practically means

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Executive summary

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This is a ruling by Mumbi Ngugi, JA, of the Court of Appeal at Nairobi on an application dated 2nd June 2023 by Josiah Malombe Kimanzi, Timothy Kimanzi Kiiva and Joyce Mavisi Malombe. The applicants sought leave to file an application to strike out the respondent's notice of appeal out of time, and that an annexed application dated 25th May 2023 be deemed duly filed. The background was a land dispute over parcels Matinyani/Kalimanzi/231, 899 and Kyangwithya/Tungutu/1153, in which O. A. Angote J had found in the applicants' favour on 30th July 2021. The respondent lodged a notice of appeal and obtained an injunction, but never instituted her appeal within the prescribed sixty days. The applicants, having themselves missed the thirty-day window for a striking-out application under rule 86, sought an extension of time. The court dismissed the application. It first observed that the Civil Procedure Act and Rules invoked by the applicants do not apply to Court of Appeal matters. It then held that rule 85 contains an inbuilt mechanism: a party who fails to institute an appeal within the appointed time is deemed to have withdrawn the notice of appeal, and the Court may so order on its own motion or on application. Following Mae Properties Limited v Kibe & another, the court held that an intended respondent need not go through the gymnastics of seeking an extension of time to file a striking-out application. The applicants were granted liberty to file an appropriate application under rule 85, and the court made no order as to costs.

Key legal issues

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01

Whether extension of time should be granted to file a striking-out application under rule 86

Holding

The application was dismissed; the court declined to entertain it, noting the applicants had not invoked rule 4 and that rule 85 already provides the remedy

Reasoning

The court observed the irony of applicants who failed to comply with timelines seeking an extension to enforce compliance by another party. Rule 85 contains an inbuilt mechanism: a party who fails to institute an appeal within the appointed time is deemed to have withdrawn the notice of appeal, and the Court may so order on its own motion or on application. The applicants were directed to the rule 85 route and the Mae Properties jurisprudence.

p. 3
02

Applicability of the Civil Procedure Act and Rules to Court of Appeal proceedings

Holding

The Civil Procedure Act and Rules are not applicable to matters before the Court of Appeal

Reasoning

The application was expressed to be brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules, 2010. The court paused to observe that these provisions do not apply to matters before the Court of Appeal, which is governed by its own Rules.

p. 1

Legal principles established

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  • Where a party fails to institute an appeal within the appointed time, rule 85 deems the notice of appeal withdrawn; an intended respondent need not seek extension of time to file a striking-out application
  • The Civil Procedure Act and Rules do not apply to matters before the Court of Appeal
  • The deeming consequence under rule 85 sets in automatically upon lapse of the appointed time

Court orders

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  1. 1.The application dated 2nd June 2023 is dismissed
  2. 2.The applicants are at liberty to file an appropriate application upon addressing their mind to the provisions of rule 85 of the Court of Appeal Rules and the jurisprudence of the Court, particularly Mae Properties Limited v Kibe & another
  3. 3.No order as to costs
On appeal from
Environment and Land Court at Machakos
Machakos ELC Appeal No. 10 of 2017
Jurisdiction invoked
rule 86 and rule 85 of the Court of Appeal Rules, 2022 (extension of time to file striking-out application)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kimanzi & 2 others v Kimanthi", Case Analysis (2026). Civil Appeal (Application) E235 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1776/eng@2026-09-25

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