Makunyi v Odhiambo & another (Civil Application E053 of 2021) [2026] KECA 1103 (KLR)
The bottom line
#The Court of Appeal declared a notice of appeal left idle for nearly seven years legally dead, confirming Kenyan appeal notices expire after 60 days of inaction.
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- 1.Whether the notice of appeal dated 16th January 2019 should be struck out and/or deemed withdrawn for want of prosecution, inordinate delay, and abuse of the Court process
Key legal issues
#Whether a notice of appeal that was never prosecuted for nearly seven years should be struck out or deemed withdrawn
Yes. The notice of appeal lapsed under rule 83 (now rule 85); the respondents' inaction and unexplained indolence amounted to abandonment and abuse of process, and the notice was marked as withdrawn.
Rule 82(1) required institution of the appeal within 60 days, with exclusion only of time for certified proceedings where a timely request and deposit were made. The respondents requested proceedings but never paid the deposit; it was the applicant who paid it. The proceedings were ready by 13th December 2019 and the respondents were notified, yet took no step. With no explanation offered, the court inferred abandonment; the deeming consequence under rule 83 is mandatory and sets in when the appointed time lapses.
Whether the application, brought under the repealed 2010 Rules but heard under the 2022 Rules, survived the transition
The application survived because it straddled rules 83 and 84 of the 2010 Rules; rule 83 (deeming a notice withdrawn) carried no timeline, unlike rule 84 which required a strike-out application within 30 days.
The court noted the 2010 Rules had been replaced by the 2022 Rules, whose equivalents are rules 85 and 86. Had the application been brought solely under rule 84 it would have been incompetent for being out of time, but its grounding in rule 83, which is not encumbered by any timeline, preserved it.
Legal principles established
#- Under rule 83 (now rule 85) of the Court of Appeal Rules, a notice of appeal is deemed withdrawn the moment the 60 days appointed for institution of the appeal lapse, absent supervening circumstances such as lodgment of the appeal or an extension of time
- The exclusion of time for preparation of certified proceedings under rule 82(1) does not grant an indefinite moratorium; the appellant must demonstrate diligence in pursuing the proceedings
- A notice of appeal lodged but never prosecuted for years is an abuse of the court process and may be struck out
Court orders
#- 1.The applicant's motion dated 18th February 2021 is allowed
- 2.The respondents' Notice of Appeal dated 11th December 2018 and filed on 16th January 2019 is marked as withdrawn
- 3.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi High Court Civil Case No. 20 of 2017 (formerly Comm. 296 of 2016)
- Jurisdiction invoked
- Rules 42, 43(1), 75(1), 82(1), 83 and 85 of the Court of Appeal Rules, 2010 (equivalents rules 85 and 86 of the Court of Appeal Rules, 2022)
Relief refused
#Costs of the application
The application proceeded undefended, so the court declined to award costs
Costs
No order as to costs (the application having proceeded undefended)
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.
As a result, the applicant’s motion dated 18th February 2021 is hereby allowed and the respondents’ Notice of Appeal dated 11th December 2018 and filed on 16th January 2019 is hereby marked as withdrawn.
The application having proceeded undefended, we make no order as to costs.
It is safe to say, therefore, that a notice of appeal dies a natural death after the expiry of 60 days unless its life should be sooner extended by lodgment of the appeal within 60 literal days, or such longer time as may still amount to 60 days by operation of the proviso to Rule 82(1) on exclusion.
A notice, though comatose, in our view, that has existed for this long without the appeal itself having been filed is a blight upon the legal process, clogs the judicial duct, is wholly untenable, and amounts to an abuse of the limited judicial resources.
However, this does not grant an indefinite moratorium. The appellant must demonstrate diligence in pursuing the proceedings.
Issues in the judgment
#The judgment internally gives inconsistent dates for the notice of appeal: it is described as dated 16th January 2019 in the application and throughout, but the final order describes it as dated 11th December 2018 and filed on 16th January 2019.
Chronological anomaly: the application is dated 18th February 2021 and described as filed in early 2021, but the hearing record refers to written submissions dated 17th February 2026 and the judgment was delivered on 12th June 2026, with no explanation for the intervening years; the judgment also states 'more than seven years had lapsed from the time the notice was filed' although under seven years elapsed between January 2019 and 2026.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makunyi v Odhiambo & another (Civil Application E053 of 2021) [2026] KECA 1103 (KLR)", Case Analysis (2026). Notice of Motion dated 18th February 2021 (arising from Nairobi High Court Civil Case No. 20 of 2017, formerly Comm. 296 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1103/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.