Maina v Macharia & 5 others
The bottom line
#Supreme Court deems notice of appeal withdrawn if appeal not filed within 30 days.
What this practically means
#The Supreme Court ruled that if you file a notice of appeal but don't file the actual appeal papers within 30 days, your notice is considered withdrawn. This happened in a Starehe election dispute where the losing candidates filed a notice but never followed up. The court enforced the deadline strictly, saying failure to seek certification doesn't excuse the delay. The notice was withdrawn, and the respondents had to pay costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st, 2nd and 3rd respondents have failed to institute their appeal within the prescribed time after filing the notice of appeal, thereby rendering the notice of appeal deemed withdrawn under rule 46 of the Supreme Court Rules, 2020.
Key legal issues
#Whether the 1st, 2nd and 3rd respondents' failure to file an appeal within 30 days of the notice of appeal, without seeking certification, renders the notice of appeal deemed withdrawn.
Yes. The respondents failed to institute their appeal within the prescribed timeline after filing the notice of appeal and provided no justification for the continued existence of the notice of appeal beyond the permitted period.
The court applied rule 38 of the Supreme Court Rules, 2020, which requires an appeal to be filed within 30 days of the notice of appeal (for appeals as of right) or within 30 days after certification (where required). The respondents filed a notice of appeal on August 8, 2023, but did not file their petition and record of appeal within 30 days. They argued that they intended to seek certification under Article 163(4)(b) of the Constitution, but provided no evidence of any application for certification. The court found that the respondents had defaulted and, under rule 46, the notice of appeal was deemed withdrawn. The court also noted that if the respondents later obtain certification, they have sufficient time to move the court under the relevant rule.
Legal principles established
#- A notice of appeal lapses if the appeal is not filed within 30 days.
- Failure to apply for certification does not justify missing the 30-day deadline.
- The court can declare a notice withdrawn on its own or by application.
- Defaulting parties bear the costs of the application.
- Strict compliance with Supreme Court Rules 2020 is mandatory for all appeals.
Court orders
#- 1.The notice of motion dated September 19, 2023 and filed on 21st September, 2023 be and is hereby allowed.
- 2.The notice of appeal dated August 8, 2023 lodged by the 1st, 2nd and 3rd respondents in the first instance at the Court of Appeal even date regarding Court of Appeal at Nairobi Election Petition Appeals Nos E006, E005 and E009 of 2023 be and is hereby deemed to have been withdrawn.
- 3.The 1st, 2nd and 3rd respondents shall bear the costs hereof.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Nairobi
- Election Petition Appeals Nos E006, E005 and E009 of 2023
- Jurisdiction invoked
- Rules 31, 38 and 46 of the Supreme Court Rules, 2020
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.
We are satisfied that the 1st, 2nd and 3rd respondents have defaulted in filing their appeal within the prescribed timeline after filing their notice of appeal.
The notice of appeal dated August 8, 2023 lodged by the 1st, 2nd and 3rd respondents in the first instance at the Court of Appeal even date regarding Court of Appeal at Nairobi Election Petition Appeals Nos E006, E005 and E009 of 2023 be and is hereby deemed to have been withdrawn.
The 1st, 2nd and 3rd respondents shall bear the costs hereof.
Key timeline
#Practical implications
#Adhere to strict appeal filing deadlines
After filing a notice of appeal, you must file the petition and record within 30 days. If certification is needed, apply well before the deadline. Failure results in the notice being deemed withdrawn and costs awarded against your client. Move promptly to preserve the right of appeal.
Comply with court timelines or lose rights
If your business is a party to litigation and loses, you cannot simply file a notice of appeal and wait. You must file the full appeal within 30 days. Missing this window forfeits your chance to challenge the decision, even if you intended to seek certification. Always engage a lawyer to track deadlines.
Miss appeal deadlines: case may end
Losing a court case doesn't mean you can appeal anytime. After filing a notice of appeal, you have only 30 days to submit the appeal papers. If you miss that, the court can throw out your appeal. Get legal help immediately after losing to avoid missing this strict deadline.
Frequently asked questions
#What happens if I file a notice of appeal but don't file the appeal itself in Kenya?+
Under Supreme Court Rules, if you don't file the appeal within 30 days after the notice, the notice is automatically deemed withdrawn. The court can also order you to pay costs. You lose the chance to appeal unless you get special permission later.
How long do I have to file a Supreme Court appeal after a notice in Kenya?+
You have 30 days from the date you file the notice of appeal. If your appeal requires certification (e.g., as a matter of general public importance), you must file within 30 days after certification is granted. No extension is automatic.
Can I still appeal to the Supreme Court of Kenya if I missed the 30-day filing deadline?+
Generally, no. The notice of appeal is deemed withdrawn. However, if you later obtain certification from the Court of Appeal, you may file a fresh appeal. But you cannot rely on the old notice. Act quickly to avoid losing the right.
What does 'notice of appeal deemed withdrawn' mean in Kenya?+
It means the court treats the notice as if it was never filed. You lose the chance to proceed with that appeal. The case ends, and you may have to pay costs. This happens when you don't follow the required steps within the timeline set by the rules.
Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Olenja v Olenja (Civil Appeal (Application) 560 of 2019) [2026] KECA 199 (KLR)[2026] KECA 199 (KLR)6 Feb 2026followed
- Khamis & another v Bader (Civil Application E085 of 2024) [2026] KECA 48 (KLR)[2026] KECA 48 (KLR)30 Jan 2026
- Mwanzaka & another (Suing on Behalf of the Estate of Mwanzaka Tindi D-Zengo - Deceased) v Dandasi (Civil Application E080 of 2023) [2024] KECA 796 (KLR)[2024] KECA 796 (KLR)12 Jul 2024
Cite this brief
#Cite this brief
Caselaw, "Maina v Macharia & 5 others", Case Analysis (2023). Application E035 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/97/eng@2023-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.