https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1135

Gitere & 2 others v Gitere Kahura Investments Ltd (Civil Application E302 of 2021) [2026] KECA 1135 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1135 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E302 of 2021 DK Musinga, P Lilan & JO Okello, JJA June 12, 2026 Between Kenneth Kimari Gitere 1st Applicant David Wakangu Gitere 2nd Applicant Lucas Waithaka Gitere 3rd Applicant and Gitere Kahura Investments Ltd Respondent ((Being an application to deem as withdrawn the Notice of Appeal dated 28th June 2016 filed against the directions of the High Court of Kenya at Nairobi (Ochieng, J.) dated 16th June 2016 and the Notice of Appeal dated 9th November 2018 filed against the ruling of the High Court at Nairobi (Kasango, J.) delivered on 30th October 2018 in Civil Case No. 119 of 2016) Ruling 1.Before this Court is an application dated 9th August 2021 brought under rules 83, 42 and 43(1) of the Court of Appeal Rules, 2010. The orders sought are that the Notices of Appeal dated 28th June 2016 and 9th November 2018 be marked as withdrawn and that costs of the application be borne by the respondent. 2.The application is supported by the grounds set out on its face and the affidavit sworn by Kenneth Kimari Gitere, the 1st applicant on his own behalf and on behalf of the 2nd and 3rd applicants, all of whom are brothers and co-directors of the respondent company, alongside Anne Wanjiru Gitere and Samuel Mburu Gitere. 3.The background to this application is that the respondent, Gitere Kahura Investments Limited, filed High Court Civil Case No. 119 of 2016 against the applicants and other defendants vide a plaint dated 18th March 2016, seeking injunctive and preservatory orders relating to the management and control of the company's assets. The dispute arose from disagreements among the directors regarding the affairs of the respondent company. 4.Contemporaneous with the plaint, the respondent filed an application seeking interim orders to restrain the applicants from dealing with the respondent’s properties and specified bank accounts. Upon hearing the application on 14th April 2016, the trial court issued interim orders, including orders freezing accounts held at National Bank of Kenya and Co- operative Bank of Kenya pending determination of the application. 5.In response, the applicants filed a replying affidavit dated 22nd April 2016 and subsequently lodged a notice of preliminary objection dated 25th April 2016 seeking to strike out the plaint on grounds that it was incompetent, frivolous and an abuse of the court process. The matter was thereafter scheduled for mention on 16th June 2016 for directions on the hearing of both the preliminary objection and the respondent’s application. 6.Meanwhile, on 30th May 2016, the respondent filed an application seeking, among other orders, transfer of the matter to a two-judge bench, the joinder of AGN Kamau Advocates as a party or, alternatively, its disqualification from acting for the 1st and 2nd applicants, and the consolidation of the suit with Nairobi High Court Succession Cause No. 265 of 2009 relating to the Estate of Gitere Kahura and Nairobi High Court Succession Cause No. 373 of 2016 relating to the Estate of Mary Nyokabi. 7.According to the applicants, when the matter came before the trial court on 16th June 2016, the court directed that the preliminary objection be heard and determined before the respondent’s application. Aggrieved by the directions issued on 16th June 2016, the respondent, through Waruhiu & Gathuru Advocates, lodged a notice of appeal dated 28th June 2016. The applicants aver that although the notice was filed, no appeal was subsequently instituted or prosecuted. 8.The applicants further contend that proceedings before the trial court were marked by a series of interlocutory applications by the respondent, including an application dated 20th September 2016 seeking the recusal of Ochieng, J. (as he then was) or, in the alternative, a review of the orders issued on 16th June 2016. Following the transfer of Ochieng, J., the matter was placed before Kasango, J., against whom the respondent similarly sought recusal. In a ruling delivered on 30th October 2018, the trial court dismissed the recusal application and upheld the earlier directions that the preliminary objection be heard and determined first. 9.Following the ruling delivered on 30th October 2018, the respondent obtained leave to appeal and, through Gacheru Nganga & Co. Advocates, lodged a notice of appeal dated 9th November 2018. 10.The applicants contend that despite filing the two notices of appeal, the respondent failed to institute appeals within the sixty-day period prescribed under rule 82 of the Rules of this Court. The applicants contend that the respondent’s failure to comply with the timelines prescribed under the Rules of this Court renders the notices liable to be deemed withdrawn pursuant to rule 83. 11.The applicants further contend that the respondent has demonstrated no intention of prosecuting the intended appeals and that the notices of appeal were merely calculated to delay proceedings before the trial court, hinder the determination of the preliminary objection and prolong the dispute concerning the management of the respondent company. On that basis, they urge this Court to mark the notices of appeal as withdrawn with costs. 12.The application is opposed by the respondent vide a replying affidavit sworn by Peter Gacheru Ng’ang’a, its advocate on record. The deponent avers that the first notice of appeal dated 28th June 2016, filed by Waruhiu & Gathuru Advocates, arose from directions issued by the trial court requiring the applicants’ preliminary objection to be heard before the respondent’s application challenging the representation of the defendants by AGN Kamau Advocates. He contends that the issue of representation ought to have been determined first. 13.The respondent further avers that, upon applying for a variation of those directions, Ochieng, J. on 30th March 2017 ordered that the question of representation by AGN Kamau Advocates be determined first. It therefore contends that the first notice of appeal was overtaken by events and did not require further pursuit. The respondent also avers that the proceedings necessary for lodging the appeal were never supplied. 14.With respect to the second notice of appeal, the deponent avers that it was filed on 12th November 2018 following the ruling of Kasango, J. delivered on 30th October 2018. In the said ruling, the learned judge declined to recuse herself and reviewed the directions previously issued by Ochieng, J. on 30th March 2017, ultimately directing that the preliminary objection be heard and determined first. The respondent further avers that it applied for typed proceedings with a view to instituting an appeal but the proceedings were never supplied. 15.The respondent further depones that there were subsequent proceedings before Kasango, J. and Majanja, J. which culminated in a ruling delivered on 5th February 2021, in which Majanja, J. struck out the suit after declining to grant the respondent’s minority shareholders leave to continue the proceedings as a derivative action. 16.The respondent avers that it thereafter lodged Nairobi Civil Appeal No. E481 of 2021 on 24th August 2021 challenging the decision striking out the suit. It contends that the appeal incorporates the interlocutory issues that had been the subject of the two notices of appeal. The respondent further depones that it complied with directions issued requiring parties to file submissions and filed its submissions on 19th December 2022, while the applicants failed to do so. According to the respondent, the appeal is presently awaiting a hearing date. 17.In conclusion, the respondent contends that the two interlocutory notices of appeal were subsumed into the substantive appeal and form part of the record in Nairobi Civil Appeal No. E481 of 2021. It therefore avers that there is no basis for deeming them withdrawn and urges the Court to dismiss the application. 18.At the hearing of this application, learned counsel Ms. Mbirwe held brief for AGN Kamau Advocates for the applicants, while learned counsel Mr. Gacheru appeared for the respondent. Both counsel elected to rely on their respective written submissions, which substantially reiterated the positions already summarized hereinabove. We shall therefore not rehash those arguments. However, in response to questions posed by the Court, counsel made certain submissions which we consider necessary to highlight. 19.On behalf of the applicants, Ms. Mbirwe maintained that the application remained live for determination because the respondent had only filed two notices of appeal without instituting the corresponding appeals. Counsel further contended that the orders giving rise to the notices had neither been reviewed nor set aside and therefore remained capable of challenge. She argued that the issues arising from the two notices of appeal were distinct from those raised in Nairobi Civil Appeal No. E481 of 2021 and could not be said to have been subsumed into that appeal. Consequently, counsel urged the Court to find that, no appeals having been lodged within the prescribed timelines, the notices of appeal stood withdrawn by operation of the Rules. 20.On his part, Mr. Gacheru reiterated that the first notice of appeal had been overtaken by events following the variation of the impugned directions by the trial court on 30th March 2017. Counsel further maintained that the respondent had since lodged Nairobi Civil Appeal No. E481 of 2021 and that the two notices of appeal formed part of the record in that appeal, thereby rendering separate interlocutory appeals unnecessary. He therefore urged the Court to regard the issues raised in the notices as having been subsumed into the substantive appeal. 21.We have considered the application, the affidavits sworn in support and in opposition thereto, the rival submissions by counsel and the applicable law. In our view, the issues that arise for determination are whether the notices of appeal dated 28th June 2016 and 9th November 2018 are liable to be deemed withdrawn under rule 83 of the Court of Appeal Rules, 2010, and if so, whether the subsequent filing of Nairobi Civil Appeal No. E481 of 2021 altered that legal consequence. 22.The application before us is principally anchored on rule 83 of the Court of Appeal Rules, 2010 (now rule 85) which provided as follows:“If a party who has lodged a notice of appeal fails to institute an appeal within the appointed time he shall be deemed to have withdrawn his notice of appeal and the court may on its own motion or on application by any party make such order. The party in default shall be liable to pay the costs arising therefrom of any persons on whom the notice of appeal was served.” 23.The jurisprudence of this Court on the operation of rule 83 is now settled. In Mae Properties Limited v Joseph Kibe & another [2017] eKLR, this Court emphasized that the consequence prescribed under rule 83 is automatic. The Court held that once the prescribed period for instituting an appeal lapses without an appeal being lodged, the notice of appeal is deemed withdrawn by operation of law and dies a natural death. The Court's role thereafter is merely to make the formal order recognizing that consequence. Similarly, in John Mutai Mwangi & 26 others v Mwenja Ngure & 4 others [2016] eKLR, the Court stated thus:“This deeming provision appears to us to be inbuilt case-management system loaded into the Rules. It enables the Court, ideally, to clean up its records by striking out all the notices of appeals that have not been followed up, within 60 days, by records of appeal. It is a rule that telegraphs that notices of appeal should not be lodged in jest or frivolously, with no real or serious intention to actually institute appeals. The rationale of this is self-evident but made the more compelling by a recognition that mischievous or crafty litigants may be content to merely park the bus at appeal gate and not move thereafter – especially should they obtain some kind of stay or injunctive orders protective of their interests pending appeal. To that category of appellants, a delayed, snail speed or never- happen institution of the appeal means a perpetual enjoyment of interim relief. The rule was designed to give to such no succour.” 24.It is not disputed that the respondent lodged the first notice of appeal on 28th June 2016 challenging the directions issued by the trial court on 16th June 2016. It is equally uncontested that no substantive appeal was instituted thereafter. The respondent’s explanation is that the impugned directions were subsequently varied by Ochieng, J. on 30th March 2017, thereby rendering the intended appeal unnecessary. Indeed, the record shows that the learned judge directed that the issue regarding the representation of the 1st and 2nd applicants by AGN Kamau Advocates be heard first. In our view, that variation substantially altered the substratum of the intended appeal arising from the directions issued on 16th June 2016. 25.However, the fact that the intended appeal may have been overtaken by events did not, of itself, preserve the notice of appeal indefinitely. The respondent neither withdrew the notice voluntarily nor instituted an appeal within the timelines stipulated under rule 82 of the Rules of this Court. Equally, no application for extension of time was made. Consequently, unless there existed a legally sustainable basis for preserving the notice, the provisions of rule 83 inevitably became operative. 26.As regards the second notice of appeal dated 9th November 2018, the respondent contends that it was unable to institute the intended appeal because typed proceedings had not been supplied despite a request having been made. It is trite that where proceedings are necessary for the preparation of a record of appeal, the period certified by the registrar as having been required for the preparation and delivery of those proceedings may be excluded from the computation of time, provided that the intending appellant has applied for the proceedings in writing within the prescribed time and served the request upon the other parties. The burden nevertheless rests upon the intending appellant to demonstrate compliance with the Rule and to place before the Court material showing that the delay was attributable to the court registry. 27.In the present matter, the respondent exhibited a letter dated 30th October 2018 bespeaking certified copies of the proceedings and ruling, which letter was served upon the advocates for the parties. However, beyond that letter, no correspondence, reminder, follow-up or other material was exhibited to demonstrate any effort on the respondent’s part to obtain the proceedings. Further, no certificate of delay was produced to establish the period, if any, that ought to be excluded from the computation of time under rule 82. 28.We find that omission significant. In Mae Properties Limited v Joseph Kibe & another (supra), this Court rejected a similar explanation and observed that no evidence had been placed before it of any serious attempt to follow up and obtain the requested proceedings. The Court emphasized that rule 83 was intended to rid the appellate process of dormant notices of appeal and indolent litigants who take no meaningful steps towards instituting appeals after lodging notices of appeal. 29.Moreover, the ruling sought to be challenged through the notice of appeal dated 9th November 2018 was delivered on 30th October 2018, well before the ruling delivered by Majanja, J. on 5th February 2021, which ultimately gave rise to Nairobi Civil Appeal No. E481 of 2021. The respondent was nevertheless able to obtain the proceedings necessary for the institution of the substantive appeal arising from the latter ruling. No explanation has been offered as to why proceedings relating to the earlier interlocutory ruling could not similarly be obtained despite the passage of several years. In the absence of such an explanation, we are unable to accept the respondent’s contention that the failure to institute the intended appeal was solely attributable to the court registry. 30.We have also carefully considered the respondent’s contention that the interlocutory issues forming the subject of the two notices of appeal were incorporated into Nairobi Civil Appeal No. E481 of 2021. However, a cursory perusal of the Memorandum of Appeal dated 24th August 2021 reveals that the grounds of appeal therein are directed exclusively at the ruling delivered by Majanja, J. on 5th February 2021, by which the learned judge struck out the suit after declining to grant leave to continue the proceedings as a derivative action. None of the grounds challenges the directions issued on 16th June 2016, the subsequent variation thereof, or the ruling delivered by Kasango, J. on 30th October 2018. We are therefore unable to agree with the respondent’s assertion that the issues arising from the two notices of appeal were subsumed into the substantive appeal. 31.We are unable to agree with the respondent's contention that the subsequent filing of Nairobi Civil Appeal No. E481 of 2021 salvaged or preserved the two notices of appeal. As this Court observed in Mae Properties Limited v Joseph Kibe & another (supra), the deeming consequence under rule 83 takes effect immediately upon the lapse of the prescribed period, such that a notice of appeal "dies a natural death" unless its life is extended by the institution of an appeal within time, exclusion of time under rule 82, or an order extending time. 32.Applying those principles to the present case, it is not disputed that no appeal was instituted pursuant to either the notice of appeal dated 28th June 2016 or the notice of appeal dated 9th November 2018 within the timelines prescribed under the Rules of this Court. Neither was there any application for extension of time. The respondent cannot therefore rely on the subsequent institution of Nairobi Civil Appeal No. E481 of 2021 to retrospectively revive notices of appeal that had already been deemed withdrawn by operation of rule 83. 33.In the circumstances, we are satisfied that the applicants have attained the threshold contemplated under rule 83 for the operation of the deeming provision. Accordingly, we allow the application dated 9th August 2021 and order that the notices of appeal dated 28th June 2016 and 9th November 2018 be and are hereby deemed withdrawn pursuant to rule 83 of the Court of Appeal Rules, 2010. The applicants shall have the costs of the application. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE, 2026.D. K. MUSINGA....................................JUDGE OF APPEAL PAUL LILAN....................................JUDGE OF APPEALDR. JOHNSON OKELLO....................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar