Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNotice of Motion dated 18th February 2021 (arising from Nairobi High Court Civil Case No. 20 of 2017, formerly Comm. 296 of 2016)

Makunyi v Odhiambo & another (Civil Application E053 of 2021) [2026] KECA 1103 (KLR)

Court of Appeal of Kenya
12 June 2026
1,780 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

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

#
This is a single-judgment decision of a three-judge bench of the Court of Appeal at Nairobi (Korir, Nduma Nderi and Ndolo, JJA) delivered on 12th June 2026, allowing an undefended notice of motion dated 18th February 2021 by Samwel Kijogi Makunyi. The applicant, who had obtained judgment in Nairobi High Court Civil Case No. 20 of 2017 (formerly Comm. 296 of 2016) from Kamau, J. on 31st October 2018, including general damages of Kshs. 2,000,000 and exemplary damages of Kshs. 1,000,000, moved to strike out or have deemed withdrawn the respondents' notice of appeal. A consent of 4th February 2019 had allowed the respondents to file the notice out of time on condition they deposited the decretal amount in a joint interest-earning account within 90 days. Although the respondents requested proceedings in February 2019, they never paid the requisite deposit; the applicant himself paid it in October 2019, and the proceedings were ready and notified in December 2019. No record of appeal was ever filed. The sole issue was whether the notice of appeal should be struck out or deemed withdrawn for want of prosecution, inordinate delay and abuse of process. Applying rule 83 of the 2010 Rules (now rule 85 of the 2022 Rules) as explained in Mae Properties Limited v Kibe & Another, and John Mutai Mwangi v Mwenja Ngure, the court held that a notice of appeal dies a natural death after 60 days unless the appeal is lodged or time extended, that the rule 82(1) exclusion grants no indefinite moratorium, and that the respondents' near-seven-year inaction amounted to abandonment and abuse of process. The motion was allowed, the notice of appeal was marked as withdrawn, and, the application having proceeded undefended, there was no order as to costs. The decision below was not disturbed; this was an interlocutory application, not an appeal on the merits.

Questions the Court framed

#

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

  1. 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

#
01

Whether a notice of appeal that was never prosecuted for nearly seven years should be struck out or deemed withdrawn

Holding

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.

Reasoning

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.

p. 3
02

Whether the application, brought under the repealed 2010 Rules but heard under the 2022 Rules, survived the transition

Holding

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.

Reasoning

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.

p. 2

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. 1.The applicant's motion dated 18th February 2021 is allowed
  2. 2.The respondents' Notice of Appeal dated 11th December 2018 and filed on 16th January 2019 is marked as withdrawn
  3. 3.No order as to costs

The bench

#

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

majority
majority
majority
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

p. 4

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.
p. 4Final orders - notice of appeal deemed withdrawn
The application having proceeded undefended, we make no order as to costs.
p. 4Costs
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.
p. 3Effect of rule 83/85 - lapse of notice of appeal
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.
p. 4Abuse of process by unprosecuted notice of appeal
However, this does not grant an indefinite moratorium. The appellant must demonstrate diligence in pursuing the proceedings.
p. 3Limits of rule 82(1) time exclusion

Issues in the judgment

#
minor

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.

minor

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.