Mwadziwe & another v Muhangani & another (Civil Application E019 of 2022) [2025] KECA 1941 (KLR)
The bottom line
#The Court of Appeal refused to lift a stay or strike out the respondents' appeal, confirming an appeal actually filed cannot be deemed withdrawn.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 order of 2nd December 2022 staying execution of the ELC judgment should be set aside or lifted
- 2.Whether the respondents' appeal should be deemed withdrawn under Rule 85 of the Court of Appeal Rules for failure to file an appeal
- 3.Whether the appeal should be struck out under Rule 86 of the Court of Appeal Rules
Key legal issues
#Whether an appeal is deemed withdrawn under Rule 85 where a pending appeal exists
The deeming provision in Rule 85 does not apply where the appeal has actually been instituted and is pending; the applicants' premise that no appeal had been filed was factually wrong.
The Court applied Mae Properties and Esther Anyango Ochieng, holding that Rule 85's deeming consequence applies only where no record of appeal has been filed at the time the Court considers the question. The respondents demonstrated that Mombasa Civil Appeal No. E119 of 2022 was lodged and pending case management directions. Therefore the application premised on non-filing of an appeal was not well founded.
Whether striking out is warranted under Rule 86
Rule 86 striking out was unavailable because no failure to take an essential step within the prescribed time was demonstrated.
The application under Rule 86 rested solely on the assertion that no appeal had been filed. Since a pending appeal existed, the applicants did not show that the appeal does not lie or that an essential step in the proceedings was omitted or taken outside the time prescribed under Rule 84. The discretionary power to strike out being draconian, it is reserved for plain and clear cases.
Legal principles established
#- The power to strike out an appeal is discretionary, draconian, and should only be exercised in plain and clear cases.
- Rule 85 does not deem an appeal withdrawn where the appeal has in fact been instituted and a record of appeal has been filed within the appointed time.
Court orders
#- 1.The application dated 22nd January 2025 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 84, 85 and 86 of the Court of Appeal Rules
Relief refused
#Setting aside or lifting of the stay of execution orders granted on 2nd December 2022
The appeal was in fact instituted and is pending before the Court, so Rule 85 deeming and Rule 86 striking out did not apply
Striking out of any Notice of Appeal, Memorandum of Appeal or Record of Appeal filed by the respondents
It was not demonstrated that the appeal does not lie or that an essential step in the proceedings was not taken within the time prescribed under Rule 84
Costs
The application fails and is hereby dismissed with costs.
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.
The power of this Court to strike out an appeal is discretionary, and as urged by counsel for the respondents it is draconian and should only be resorted to in plain and clear cases.
Essentially this is a practical rule that is intended to rid our registry of merely speculative notices of appeal filed either in knee-jerk reaction to the decision of the court below, or filed in holding mode while the party considers whether or not to lodge a substantive appeal.
Given that there is a pending appeal, we decline the invitation to deem it as withdrawn.
The application fails and is hereby dismissed with costs.
Issues in the judgment
#The judgment records that the Hon. Mr. Justice Fred Ochieng, JA died prior to delivery of the judgment and that the decision was delivered by the remaining two members under Rule 34(4); the coram therefore contains only two judges.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kerio Valley Development Authority v Ruto (Civil Appeal (Application) E012 of 2025) [2025] KECA 858 (KLR)[2025] KECA 858 (KLR)16 May 2025
Cite this brief
#Cite this brief
Caselaw, "Mwadziwe & another v Muhangani & another (Civil Application E019 of 2022) [2025] KECA 1941 (KLR)", Case Analysis (2025). Civil Application No. E019 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1941/eng@2025-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.