Muhanji v Kenya Ports Authority (Civil Appeal (Application) E064 of 2024) [2025] KECA 1567 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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- 2.Whether the notice of appeal should be deemed withdrawn under Rule 85 for failure to institute the appeal within the appointed time
- 3.Whether the memorandum and record of appeal filed without extension of time were competent under Rule 84
Key legal issues
#Competency of a late application to strike out a notice of appeal
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.
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.
Deemed withdrawal of a notice of appeal under Rule 85
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the appeal within the appointed time and without extension of time, the respondent's notice of appeal was deemed withdrawn and the memorandum and record of appeal were struck out as incompetent.
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 Rule 85 therefore applied: the notice was deemed withdrawn.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.
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.The notice of appeal dated 26th June 2023 is deemed to have been withdrawn under Rule 85
- 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.
- 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
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.
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.
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
Issues in the judgment
#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.