Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedMombasa Civil Appeal (Appl.) No. E091 of 2023 (application dated 13th June 2024)

Muhanji v Kenya Ports Authority (Civil Appeal (Application) E064 of 2024) [2025] KECA 1567 (KLR)

Court of Appeal of Kenya
3 October 2025
1,403 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya Ports Authority's appeal collapsed because it filed late without extension of time, though the court could not strike out its unserved notice of appeal due to a 30-day deadline.

What this practically means

#

Executive summary

#
This is a single judgment of a three-judge bench (Tuiyott, Achode and Muchelule, JJ.A.) of the Court of Appeal at Mombasa, delivered on 3rd October 2025, on an application by Anthony Muhanji seeking to strike out, or have deemed withdrawn, a notice of appeal lodged by Kenya Ports Authority against an ELRC judgment (Nzei, J., 19th June 2023) that declared his summary dismissal wrongful and ordered his reinstatement. The respondent had earlier obtained a stay of execution from a differently constituted bench, which noted that a notice of appeal was on record without ruling on its validity. The applicant argued the notice of appeal dated 26th June 2023 was never served on him, and that no record of appeal had been filed within 60 days. The court dismissed the striking-out limb: the proviso to Rule 86 bars striking-out applications brought more than 30 days after service of the notice or record of appeal, and the application of 13th June 2024 was long out of time, so the competence of the notice could not be questioned. However, applying Rule 85, the court found that by the date of the application no appeal had been instituted and no extension of time had been sought; it deemed the notice of appeal withdrawn and struck out the memorandum and record of appeal as incompetent, citing Mae Properties and Salama Beach Hotel. No separate costs order appears in the judgment. The decision binds lower courts and parties on the operation of Rules 84, 85 and 86.

Questions the Court framed

#

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

  1. 1.Whether the application to strike out the notice of appeal for non-service was competent under the proviso to Rule 86 of the Court of Appeal Rules
  2. 2.Whether the notice of appeal should be deemed withdrawn under Rule 85 for failure to institute the appeal within the appointed time
  3. 3.Whether the memorandum and record of appeal filed without extension of time were competent under Rule 84

Key legal issues

#
01

Competency of a late application to strike out a notice of appeal

Holding

The application to strike out the notice of appeal for non-service was time-barred by the proviso to Rule 86 and therefore could not be entertained.

Reasoning

Rule 86 permits a person affected by an appeal to apply to strike out a notice of appeal, but the proviso bars such an application after 30 days from service of the notice or record of appeal. The notice dated 26th June 2023 was never served; the applicant became aware of it when served with the stay application dated 26th September 2023. The striking-out application of 13th June 2024 was far outside the 30-day window, so the court was constrained to dismiss that limb.

p. 3
02

Deemed withdrawal of a notice of appeal under Rule 85

Holding

Having failed to institute the appeal within the appointed time and without extension of time, the respondent's notice of appeal was deemed withdrawn and the memorandum and record of appeal were struck out as incompetent.

Reasoning

Rule 84(1) requires an appeal to be instituted by lodging a memorandum and record of appeal within 60 days of the notice of appeal, subject to the proviso for time certified as required for obtaining proceedings. At the time of the application of 13th June 2024, one year after the notice, no memorandum or record of appeal had been filed and no extension of time had been sought or granted. Rule 85 therefore applied: the notice was deemed withdrawn. The record of appeal filed on 8th August 2024, relying on a certificate of delay dated 29th July 2024, could not cure the default.

p. 3

Legal principles established

#
  • An application to strike out a notice of appeal on the ground of non-service must be brought within 30 days of the date of service of the notice of appeal or record of appeal; beyond that, the competence of the notice of appeal cannot be questioned.
  • Where a party who lodges a notice of appeal fails to institute the appeal within the appointed time, the notice of appeal is deemed withdrawn and any memorandum and record of appeal filed without extension of time is incompetent and liable to be struck out.

Court orders

#
  1. 1.The notice of appeal dated 26th June 2023 is deemed to have been withdrawn under Rule 85
  2. 2.The memorandum and record of appeal are struck out as incompetent

The bench

#

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

majority
majority
majority
On appeal from
Employment and Labour Relations Court, Mombasa
Mombasa ELRC cause (judgment delivered 19th June 2023)
Jurisdiction invoked
Rules 49, 59(2), 82, 83, 84, 85, 86 of the Court of Appeal Rules

Relief refused

#

Strike out of the notice of appeal for non-service

The application was brought outside the 30-day window in the proviso to Rule 86, so the competence of the notice of appeal cannot be questioned on that ground

p. 3

Costs

No costs order is stated in the judgment

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 our view, the application to strike out the notice of appeal for not having been served on the applicant ofiends the proviso to Rule 86 of this Court's Rules.
p. 3Time-bar on striking out applications under Rule 86
We find that by the time of the filing of the application, there was no appeal that had been lodged by the respondent. The lodgment of the appeal was without extension of time.
p. 3Failure to institute appeal within time
On the basis of Rule 85, we deem the notice of appeal as having been withdrawn and strike out the memorandum and record of appeal as being incompetent
p. 3Final orders - deemed withdrawal and striking out

Issues in the judgment

#
minor

The judgment records the respondent's appeal as lodged one year after the notice of appeal, yet also states the respondent contended the appeal was filed on 8th August 2024 relying on Rule 84 proviso and a certificate of delay; the relationship between these dates is not fully reconciled on the face of the judgment.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Muhanji v Kenya Ports Authority (Civil Appeal (Application) E064 of 2024) [2025] KECA 1567 (KLR)", Case Analysis (2025). Mombasa Civil Appeal (Appl.) No. E091 of 2023 (application dated 13th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1567/eng@2025-10-03

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