Kibowen v Waweru & 7 others (Civil Application 21 of 2019) [2024] KECA 734 (KLR)
The bottom line
#Filing a notice of appeal in Kenya buys you only 60 days to actually lodge the appeal — miss it and your appeal is deemed withdrawn.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the undated notice of appeal lodged on 5th December 2019 should be deemed withdrawn under Rules 84 and 85 for failure to institute the appeal within 60 days
- 2.Whether the respondents can benefit from the proviso to Rule 84(1) excluding time certified for preparation of proceedings
- 3.Who should bear the costs of the motion
Key legal issues
#Consequences of failure to institute an appeal within 60 days of filing a notice of appeal
Where no appeal is instituted within the 60 days prescribed by Rule 84(1), the notice of appeal is deemed withdrawn under Rule 85 and the Court may so order on its own motion or on application, with costs to the party in default.
Rule 84(1) requires an intending appellant to lodge, within 60 days, a memorandum of appeal, the record of appeal, the prescribed fee and security for costs. The proviso excludes only time certified by the Registrar for preparation of proceedings, and only where proceedings were requested in writing within 30 days and the request copied to the respondent. The respondents, though served, filed no response and did not institute the appeal; Rule 85's consequences are unequivocal. The Court followed Mae Properties on the natural death of a notice of appeal.
Legal principles established
#- A notice of appeal under the Court of Appeal Rules lapses unless the appeal is instituted within 60 days by lodging a memorandum of appeal, record of appeal, prescribed fee and security for costs; upon default the notice is deemed withdrawn.
- The proviso to Rule 84(1) excluding certified time applies only where the party requested a copy of the proceedings in writing within 30 days of the decision and copied the request to the respondent.
Court orders
#- 1.The notice of appeal lodged on 5th December 2019 is deemed as withdrawn
- 2.The applicant shall have the costs of the motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court (High Court)
- Nakuru ELC No. 416 of 2017
- Jurisdiction invoked
- Rules 82, 83, 84 and 85 of the Court of Appeal Rules, 2010 (now Rules 84 and 85), and Rule 34(4) on delivery
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 result, the notice of motion is allowed, and the notice of appeal lodged on 5th December 2019, be and is hereby deemed as withdrawn with costs. The applicant shall have the costs of this motion.
the Court was emphatic that a notice of appeal dies a natural death after the expiry of 60 days unless its life is extended by virtue of the proviso to Rule 84(1)
Under Rule 85, where there is default in instituting the appeal within the specified time, the party who lodged the notice of appeal shall be deemed to have withdrawn it and the Court may on its own motion or on application make such order.
Issues in the judgment
#Ruling delivered almost four years late; the judgment itself acknowledges the delay and that Koome, JA had ceased to be a judge of the Court upon assuming office of Chief Justice, with delivery pursuant to Rule 34(4) by the remaining two judges.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibowen v Waweru & 7 others (Civil Application 21 of 2019) [2024] KECA 734 (KLR)", Case Analysis (2024). Court of Appeal application arising from Nakuru ELC No. 416 of 2017 (notice of motion dated 27th February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/734/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.