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Court of AppealAllowedNotice of Motion dated 15th August 2023 (Civil Application)

Nyamasyo & 2 others v Odhiambo & 6 others (Civil Application E074 of 2023) [2025] KECA 775 (KLR)

Court of Appeal of Kenya
9 May 2025
AMA. K. MurgorKLDr. K. I. LaibutaGNG. W. Ngenye-Macharia
1,443 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a notice of appeal filed but never followed up within 60 days is automatically treated as withdrawn, with costs against the idle party.

What this practically means

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Executive summary

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This was a single-judgment ruling of a three-judge bench of the Court of Appeal at Mombasa on a Notice of Motion dated 15th August 2023 brought under rules 84(1), 85(1) and (2) and 86 of the Court of Appeal Rules, 2022. The applicants sought the striking out, or deemed withdrawal, of the respondents' Notice of Appeal filed on 11th March 2021 following a judgment delivered on 3rd March 2021, on the ground that no appeal lay and that essential steps had not been taken within the prescribed time. The respondents did not file a reply, submissions, or appear at the hearing despite due service. The Court, relying on its established jurisprudence under the deeming provision (formerly rule 83, now rule 85 of the 2022 Rules), held that the provision is a built-in case-management tool allowing the Court, on application or suo motu, to deem a notice of appeal withdrawn where the appellant fails to institute the appeal within 60 days. The respondents had taken no steps such as applying for typed proceedings, obtaining a certificate of delay, or filing a record of appeal, and offered no reasons for the delay, while apparently enjoying stay orders granted by the trial court. Allowing the application, the Court deemed the Notice of Appeal withdrawn and awarded the applicants costs of the Motion, to be borne by the respondents jointly and severally. The decision binds subordinate courts and reinforces that appellate timelines are mandatory and that speculative notices of appeal will not confer perpetual interim protection.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents' Notice of Appeal filed on 11th March 2021 should be deemed withdrawn or struck out for failure to institute the appeal within the appointed time
  2. 2.Whether the applicants' Notice of Motion dated 15th August 2023 should be allowed with costs

Key legal issues

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01

Whether the Notice of Appeal should be deemed withdrawn under rule 85 of the Court of Appeal Rules, 2022

Holding

Yes. The respondents took no steps to institute their intended appeal within the prescribed time and gave no reasons for the delay, so the Notice of Appeal is deemed withdrawn.

Reasoning

Rule 85 is predicated on circumstances permitting deeming of withdrawal. The respondents demonstrated none of the required steps - applying for typed proceedings, obtaining a certificate of delay, or filing the record of appeal - and offered no explanation for the inaction over more than two years. The deeming consequence attaches automatically when the appointed time lapses, and the Court may act on application or suo motu.

p. 2

Legal principles established

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  • A party who lodges a notice of appeal but fails to institute the appeal within the appointed time is deemed to have withdrawn the notice, and the Court may so order on application or on its own motion, with the defaulting party liable in costs.
  • Timelines prescribed for steps in appellate proceedings are mandatory and command obedience; the deeming consequence of withdrawal sets in when the appointed time lapses.

Court orders

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  1. 1.The respondents' Notice of Appeal filed on 11th March 2021 is deemed as having been withdrawn
  2. 2.The applicants' costs of the Motion shall be borne by the respondents jointly and severally

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AM
majority
KL
majority
GN
majority
Jurisdiction invoked
Rules 84(1), 85(1) and (2), and 86 of the Court of Appeal Rules, 2022

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, we find that the applicants’ Motion succeeds and, consequently, hereby order and direct that the respondents’ Notice of Appeal filed on 11th March 2021 be and is hereby deemed as having been withdrawn.
Final orders - deeming of Notice of Appeal
the timelines prescribed for the taking of certain steps in the proceedings on appeal to this Court are indispensable for the proper adjudication of appeals, and that the Court’s Rules are expressed in clear and unambiguous terms and command obedience.
p. 2Mandatory nature of appellate timelines
It seems to us that the deeming sets in the moment the appointed time lapses.
p. 3Automatic operation of the deeming provision
The applicants’ costs of the Motion shall be borne by the respondents jointly and severally.
p. 4Costs

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, "Nyamasyo & 2 others v Odhiambo & 6 others (Civil Application E074 of 2023) [2025] KECA 775 (KLR)", Case Analysis (2025). Notice of Motion dated 15th August 2023 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/775/eng@2025-05-09

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