Cloy & 2 others v Kiniaru (Substituted by Hiram Warui Ndirangu) (Civil Application E055 of 2024) [2025] KECA 943 (KLR)
The bottom line
#If you file a notice of appeal in Kenya's Court of Appeal but don't institute it within 60 days, the court can deem it withdrawn.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- 1.Whether the respondent has met the threshold for the notice of appeal dated 20th December 2023 to be deemed withdrawn or struck out under Rule 85 of the Court of Appeal Rules 2022
- 2.Whether the application is barred by the 30-day limitation in Rule 86
Key legal issues
#Institution of appeal within 60 days and consequence of non-compliance
Having filed no record of appeal within 60 days and having failed to serve the letter bespeaking proceedings, the respondent is deemed to have withdrawn the notice of appeal.
Rule 84 requires institution of an appeal within 60 days of the notice of appeal, with time extension only where a written application for proceedings is served on the respondent. The respondent admitted non-service; no record of appeal was filed within a year; there was no follow-up with the Registrar. Rule 85 mandates the court, on its own motion or on application, to deem the notice withdrawn, a clean-up mechanism against litigants who park at the appeal gate enjoying interim orders.
Applicability of the 30-day limitation in Rule 86
The 30-day bar in Rule 86 applies to striking-out applications, not to Rule 85 deeming applications; the application was properly brought under Rule 85.
The respondent argued the application was premature as it was brought outside 30 days, invoking Rule 86. The court held the application fell under Rule 85, whose deeming mechanism carries no 30-day limitation, and which may be activated on the court's own motion or upon application by any party.
Inapplicability of the Civil Procedure Act and Rules in the Court of Appeal
The Civil Procedure Act and Civil Procedure Rules do not apply in the Court of Appeal, which is governed by the Court of Appeal Rules 2022 and the Appellate Jurisdiction Act, though the court did not strike the application for the mis-citation.
The motion was expressed to be brought under Sections 1A & 1B of the Civil Procedure Act and Order 42 rule 35 of the Civil Procedure Rules. The court pointed out these do not apply in the Court of Appeal, but declined to belabour the point, invoking Article 159(2)(d) and the principle that procedural rules should not impede substantial justice.
Legal principles established
#- A party who lodges a notice of appeal must institute the appeal within 60 days; failure to serve the letter bespeaking proceedings on the respondent disentitles the appellant from relying on the proviso extending time, and the notice may be deemed withdrawn.
- An application under Rule 85 to deem a notice of appeal withdrawn is not subject to the 30-day limitation applicable to Rule 86 striking-out applications.
- The deeming provision in Rule 85 is an in-built case-management tool enabling the court, on its own motion or on application, to deem withdrawn notices of appeal not followed by institution of the appeal within 60 days.
Court orders
#- 1.The notice of appeal dated 20th December 2023 is deemed withdrawn under Rule 85 of the Court of Appeal Rules 2022
- 2.Costs of the application awarded to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Court of Appeal Rules 2022, Rules 84 and 85; Court of Appeal inherent application procedure (motion expressed under Order 42 rule 35 Civil Procedure Rules, which the court noted was inapplicable)
Relief refused
#Striking out of the notice of appeal in the alternative
The court allowed the primary prayer (deeming the notice withdrawn) and no separate striking-out order was necessary or made
Costs
Costs of the application awarded to the applicant
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 accordingly allow the application with costs to the applicant.
In the situation the respondent finds himself in, having failed to copy the letter bespeaking the proceedings to the applicant, the court, of its own motion or through an application by another party, may deem the appeal to have been withdrawn.
Under the rule, the Court deems and orders that a notice unbacked by institution of an appeal has been withdrawn.
The respondent appears to have gone to slumber after the stay was granted.
The application before us falls under Rule 86, which states that an application to strike out a notice of appeal or an appeal shall not be filed after the expiry of 30 days.
Issues in the judgment
#The judgment never states the name of the applicant, the appeal number, or a neutral citation; the applicant is identified only as the party in whose favour the High Court judgment of 13th December 2023 was delivered.
The judgment records the applicant's submission invoking Rule 85 but the paragraph quoting Rule 86 to the applicant appears to attribute the correct limitation to the respondent's Rule 86 point; the court's own statement of the applicable rule contains a contradictory lead-in:
The motion is expressed to be brought under the Civil Procedure Act and Civil Procedure Rules, which the court expressly held are inapplicable in the Court of Appeal:
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cloy & 2 others v Kiniaru (Substituted by Hiram Warui Ndirangu) (Civil Application E055 of 2024) [2025] KECA 943 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/943/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.