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Court of AppealPartially AllowedCivil Application (Voi HCCA No. E029 of 2022 appeal)

Simon (Suing as the legal representative of the Estate of Sammy Maweu Muthama - Deceased) v China Road & Bridge Corp of Kenya (Civil Application E132 of 2024) [2025] KECA 2105 (KLR)

Court of Appeal of Kenya
5 December 2025
1,308 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that an appeal not filed on time is treated as abandoned, so the Voi High Court judgment stands.

What this practically means

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Executive summary

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This was an interlocutory application before the Court of Appeal at Mombasa under rule 85 of the Court of Appeal Rules, 2022, in which Juliana Mwende Simon sought to have a notice of appeal lodged by China Road & Bridge Corporation of Kenya on 27 July 2023 against a High Court judgment at Voi (George Dulu, J, delivered 14 July 2023 in Voi HCCA No. E029 of 2022) deemed withdrawn. The application was undefended by affidavit or submissions; the respondent's counsel offered only the oral explanation that the client's file had not been obtained from previous advocates. The court found the notice of appeal was never served within 7 days as required by rule 79(1); no application for certified proceedings was made or served under the proviso to rule 84(1) and rule 84(2); and no record of appeal was filed within 60 days. The respondent had also never sought extension of time. Applying its own precedents on the mandatory character of the Court's timelines, the Court allowed the application with costs and deemed the notice of appeal withdrawn under rule 85. The effect is that the intended appeal cannot proceed, and the underlying High Court judgment stands. The decision binds subordinate courts and parties as an application of the Court's deemed-withdrawal regime and its strict-compliance jurisprudence on appellate timelines.

Questions the Court framed

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

  1. 1.Whether the respondent's notice of appeal should be deemed withdrawn under rule 85 for failure to serve the notice, bespeak proceedings, and file the record of appeal within the prescribed timelines
  2. 2.Whether the respondent had taken any steps to institute its intended appeal or sought extension of time

Key legal issues

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01

Effect of default in instituting an appeal under rule 85

Holding

The notice of appeal is deemed withdrawn where the appellant fails to institute the appeal within the appointed time, and the court may so declare on application by any party.

Reasoning

The respondent lodged a notice of appeal on 27 July 2023 but did not serve it within 7 days as required by rule 79(1), did not bespeak or serve proceedings within the periods prescribed by rule 84, and did not file the record of appeal within 60 days. It also never sought extension of time. Under rule 85, such a party is deemed to have withdrawn the notice, and the court may so order on its own motion or on a party's application.

p. 3
02

Strict adherence to the Court's procedural timelines

Holding

The timelines in the Court of Appeal Rules are indispensable to the orderly administration of justice and command obedience; non-compliance has sure consequences.

Reasoning

Relying on its own precedents, the court reaffirmed that procedural timelines serve the constitutional and statutory objective of timely, efficient and cost-effective justice. A rule of practice is almost always based on legal principle, and hardship caused by strict adherence should be met by seeking amendment of the rule, not by wishing the rule away. No extension of time having been sought, the defaults stood unregularised.

p. 3

Legal principles established

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  • A party who lodges a notice of appeal but fails to institute the appeal within the appointed time is deemed to have withdrawn the notice, and the court may so order on its own motion or on application; the defaulting party is liable for costs
  • Timelines in the Court of Appeal Rules are mandatory and must be strictly obeyed; failure to comply invites sure consequences

Court orders

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  1. 1.The applicant's notice of motion dated 14th November 2024 is allowed with costs
  2. 2.The respondent's notice of appeal dated 27th July 2023 is deemed as having been withdrawn pursuant to rule 85 of the Court of Appeal Rules, 2022

The bench

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

majority
majority
On appeal from
High Court of Kenya at Voi
Voi HCCA No. E029 of 2022
Jurisdiction invoked
Rule 85 of the Court of Appeal Rules, 2022 (deemed withdrawal of notice of appeal for default in instituting appeal)

Relief refused

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Respondent's oral request to sustain the notice of appeal

Counsel gave no affidavit or submissions in opposition and offered only an unverified explanation regarding the client's file; the respondent was in default under the Rules and had not sought extension of time

p. 3

Costs

The application is allowed with costs to the applicant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Consequently, the respondent's notice of appeal dated 27th July 2023 is hereby deemed as having been withdrawn pursuant to rule 85 of the Court of Appeal Rules, 2022. Orders accordingly.
p. 3Final orders - deemed withdrawal of notice of appeal
If a party who has lodged a notice of appeal fails to institute an appeal within the appointed time, that party shall be deemed to have withdrawn the notice of appeal
p. 2Rule 85 - effect of default
The Rules are expressed in clear and unambiguous terms and they command obedience … Failure to comply with the timelines set invites sure consequences.
p. 2Mandatory nature of appellate timelines
no court, particularly this one, should wish away the rules of court so ignobly
p. 3Strict adherence to rules of court
The foregoing procedural infractions are further compounded by the respondent's failure to file its record of appeal within the appointed 60 days next following the lodging of the notice of appeal
p. 3Cumulative procedural defaults

Issues in the judgment

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minor

The judgment does not state the formal case number of the application before the Court of Appeal; the case number given is inferred from the underlying High Court suit referenced in the judgment

minor

The judgment records that the respondent 'obtained orders to stay execution' per counsel's submissions dated 18th July 2024, but the context of that stay order is not elsewhere explained in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Simon (Suing as the legal representative of the Estate of Sammy Maweu Muthama - Deceased) v China Road & Bridge Corp of Kenya (Civil Application E132 of 2024) [2025] KECA 2105 (KLR)", Case Analysis (2025). Civil Application (Voi HCCA No. E029 of 2022 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2105/eng@2025-12-05

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