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Case Brief · caselaw.co.ke
Court of AppealStruck OutNot stated in the judgment· [2025] KECA 918 (KLR)

Kenneth Maina Makeri & 4 Others v John Edward Njeru & 5 Others

Court of Appeal of Kenya
26 May 2025
357 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out a notice of appeal that sat idle for three years because no record of appeal was ever filed, confirming delays end appeals.

What this practically means

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Executive summary

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Before the Court of Appeal at Nakuru (Warsame, Mativo and Gachoka, JJ.A) was a notice of motion dated 7th July 2023 brought under rules 77, 84 and 85 of the Court of Appeal Rules, 2022. The applicant, acting through counsel Kahiga Waitindi and Mr. Karanja, sought an order deeming the respondent's notice of appeal dated 2nd December 2019 and lodged on 11th December 2019 as withdrawn, on the ground that the respondent had failed to adhere to the procedural timelines for instituting an appeal and had not filed a record of appeal some three years after lodging the notice. The application was supported by an affidavit of the applicant's advocate; the respondent filed no response and, though duly served, did not appear at the hearing. The court found the key facts uncontroverted: the notice of appeal was filed on 2nd December 2019 and typed proceedings were supplied to the respondent on 10th February 2020, yet no record of appeal followed. It concluded that the respondent had lost interest in the appeal and that the applicant was justified in prosecuting its appeal. Holding this a proper case for the Rule 85 remedy, the court ordered that the notice of appeal be struck out, with costs to the applicant. Judgment delivered at Nakuru on 26th May 2025. The ruling is short and cites no authorities; its significance lies in confirming that unexplained, multi-year delay in filing a record of appeal, coupled with non-attendance, warrants striking out the notice of appeal under Rule 85 even in the defaulting party's absence.

Key legal issues

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01

Whether an inordinate failure to file a record of appeal after a notice of appeal justifies striking out (or deeming withdrawn) the notice of appeal under Rule 85

Holding

Yes. The notice of appeal was filed on 2nd December 2019, typed proceedings were supplied to the respondent on 10th February 2020, and no record of appeal had been filed some three years later; the court found the respondent had lost interest and struck out the notice of appeal with costs to the applicant.

Reasoning

The court considered the uncontroverted facts: the notice of appeal was lodged in December 2019 and the typed proceedings were supplied to the respondent in February 2020, yet approximately three years later no record of appeal had been filed and no response was made to the application. The respondent, though duly served, did not appear. The court concluded the respondent had abandoned the appeal and that Rule 85 furnished the appropriate remedy, warranting the striking out of the notice of appeal with costs.

p. 2

Legal principles established

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  • Where a litigant files a notice of appeal but fails to file the record of appeal within time and shows no interest in pursuing the appeal, the notice of appeal may be struck out (or deemed withdrawn) under Rule 85 of the Court of Appeal Rules on the application of the other party, even in the absence of the defaulting party who has been duly served.

Court orders

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  1. 1.The notice of appeal dated 2nd December 2019 is struck out
Jurisdiction invoked
Rules 77, 84 & 85 of the Court of Appeal Rules, 2022

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, "Kenneth Maina Makeri & 4 Others v John Edward Njeru & 5 Others", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/918/eng@2025-05-26

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