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Court of AppealAllowedNotice of Motion dated 9th July 2024 (Civil Application)

Khamis & another v Bader (Civil Application E085 of 2024) [2026] KECA 48 (KLR)

Court of Appeal of Kenya
30 January 2026
AMA. K. MurgorKLDr. K. I. LaibutaGNG. W. Ngenye-Macharia
1,160 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that if you file a notice of appeal but don't lodge the appeal within 60 days, your appeal is automatically treated as abandoned.

What this practically means

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Executive summary

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This Court of Appeal decision at Mombasa determines an application under rule 85 of the Court of Appeal Rules, 2022 by the applicants, Mbaruk Khamis Mohamed and another, seeking to have the respondents' Notice of Appeal dated 22nd January 2024 deemed as having been withdrawn. The respondents filed their notice of appeal on 23rd January 2024 and received typed proceedings on 20th March 2024, giving them 60 days under rule 84(1) to institute the appeal, subject to any period excluded by the certificate of delay. By the hearing on 11th June 2025, more than two years had elapsed without any essential steps. The 1st respondent attributed the delay to financial constraint. The Court held that compliance with the timelines in its Rules is mandatory, citing John Mutai Mwangi and MAE Properties to the effect that timelines are strict and disobedience invites sure consequences. It found the delay inordinate and inexcusable and held that financial constraint did not excuse it. Allowing the Motion, the Court deemed the respondents' notice of appeal withdrawn and ordered the respondents to bear the costs. No appeal was before the Court for review, so no prior decision was disturbed. The binding effect of the judgment is that a party who fails to institute an appeal within the appointed time has its notice of appeal deemed withdrawn under rule 85(1).

Questions the Court framed

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

  1. 1.Whether the respondents' Notice of Appeal dated 22nd January 2024 should be deemed as having been withdrawn under rule 85(1) for failure to institute the appeal within the appointed time
  2. 2.Who should bear the costs of the application

Key legal issues

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01

Effect of failure to institute an appeal within the appointed time under rule 85(1)

Holding

The notice of appeal is deemed withdrawn and the Court may so declare on application by any other party; the delay of more than two years was inordinate and inexcusable and financial constraint did not excuse it.

Reasoning

Having received typed proceedings on 20th March 2024, the respondents had 60 days to lodge the appeal under rule 84(1), subject only to exclusions in the certificate of delay. By the hearing date over two years had passed without any essential steps. The Court emphasised the mandatory duty to comply with timelines and relied on prior authority holding timelines strict and obedience to the Rules indispensable.

p. 3

Legal principles established

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  • A party who lodges a notice of appeal and fails to institute the appeal within the appointed time shall be deemed to have withdrawn the notice of appeal, and the Court may so order on its own motion or on application.
  • Failure to comply with rule 84(1) of the Court of Appeal Rules (lodging the record of appeal within 60 days, subject to the certificate of delay) necessarily results in the notice of appeal being deemed withdrawn.

Court orders

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  1. 1.The respondents' Notice of Appeal dated 22nd January 2024 and lodged on 23rd January 2024 be and is hereby deemed as having been withdrawn
  2. 2.The respondents shall bear the costs of the application

The bench

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

AM
majority
KL
majority
GN
majority
Jurisdiction invoked
Rule 85 of the Court of Appeal Rules, 2022

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 respondents’ Notice of Appeal dated 22nd January 2024 and lodged on 23rd January 2024 be and is hereby deemed as having been withdrawn.
p. 3final orders - notice of appeal deemed withdrawn
The respondents shall bear the costs of the application. It is so ordered.
p. 3final orders - costs
To our mind, the delay is inordinate and inexcusable and, least of all, by the alleged financial constraints on the part of 301 respondents.
p. 3inordinate and inexcusable delay
We need not overemphasise the mandatory duty to comply with the timelines prescribed in the Rules of this Court.
p. 3mandatory timelines

Issues in the judgment

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minor

Textual OCR-type errors in judgment ('301 respondents' where 'the' likely intended; 'Cappellant'/'CKorir' in case names)

minor

The judgment refers to the applicants' Motion succeeding while describing 'the applicants’ Notice of Motion dated 9th July 2024 succeeds and is hereby allowed as prayed' after discussing 'the appellant’s disobedience' - party labels used interchangeably

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Khamis & another v Bader (Civil Application E085 of 2024) [2026] KECA 48 (KLR)", Case Analysis (2026). Notice of Motion dated 9th July 2024 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/48/eng@2026-01-30

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