https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1052

Kanyoko & 2 others v Kamere & another (Civil Application E313 of 2021) [2026] KECA 1052 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1052 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E313 of 2021 DK Musinga, P Lilan & JO Okello, JJA May 29, 2026 Between Julie Mukami Kanyoko 1st Applicant Simon Ngeta Kanyoko 2nd Applicant Perpetua Wanjiru Kanyoko 3rd Applicant and Anne Wambui Kamere 1st Respondent Samuel Mukua Kamere 2nd Respondent (Being an application to withdraw the Notice of Appeal arising from the respondents; intention to file an appeal from the judgment of the Environment and Land Court at Nairobi (B.M. Eboso, J.) dated 15th June, 2021 in ELC Suit No. 229 of 2011) Ruling 1.The applicants’ notice of motion dated 31st August, 2021 by Julie Mukami, Simon Ngeta Kanyoko and Perpetua Wanjiru seeks to have the Notice of Appeal dated 24th June, 2021 deemed as withdrawn. The application is based on the grounds on the face of it and the supporting affidavit sworn by Julie Mukami Kanyoko on her own behalf and with authority from the other applicants. 2.The brief facts as they relate to this application are that the applicants herein by a plaint filed a plaint on 20th May, 2011, seeking specific performance, general damages for breach of contract, cost of the suit and interest at court rates. The respondents entered appearance on 29th June, 2011 but did not file their defence within the stipulated time by law. The applicants then applied for judgment against the respondents which led to an interlocutory judgment being entered against the respondents, mainly on account of the respondents’ failure to adhere to laid down procedures and timelines and the tardy conduct of the respondents at the trial. The matter was then set for formal proof before the trial court. 3.Being dissatisfied with the interlocutory judgment, the respondents filed a notice of motion on 7th December, 2012 seeking to set aside the interlocutory judgment, and leave to file defence out of time. The trial court, by a ruling of 6th December, 2013, set aside the interlocutory judgment but declined to grant the respondents leave to file a defence out of time and instead, ordered that the suit be fixed for formal proof. The formal proof was set for 28th October, 2013. 4.Before the formal proof could take off, the respondents filed an application dated 6th December, 2012 seeking to set aside the interlocutory judgment and leave to file defence. The application was heard by Mutungi, J., who by a ruling of 3rd July, 2013, set aside the interlocutory judgment but declined to grant the respondents leave to file a defence out of time. The learned judge further set the matter for formal proof for 28th October, 2013. 5.Before the matter could proceed for formal proof, the respondents by an application dated 28th October, 2013 sought leave to file a defence or, in the alternative, be allowed to file an application for review of the order that declined to grant them leave to file their defence out of time. The matter came up for hearing on 28th October, 2013, the same day that the formal proof was scheduled. Nyamweya, J., (as she then was) dismissed the application but allowed the respondents to file an application for review. The respondents filed an application for review on 4th November, 2013. The application for review was heard by the learned judge, Mutungi, J., who dismissed it with costs for having been filed out of time and without reasonable delay. 6.Dissatisfied, the respondents sought leave to appeal against the ruling of Mutungi, J. Vide Civil Appeal (Application) No. 272 of 2014 of 26th November, 2014, the respondents sought leave to file and serve the notice of appeal in the intended appeal. The application was allowed by Warsame, J.A on 25th November, 2014, who granted the respondents leave to file the appeal and serve a notice of appeal. 7.The respondents filed a notice of appeal on 27th November, 2014 and served it upon the applicants on 5th December, 2014. Upon being served with the said notice of appeal, the applicants filed an application to strike out the notice of appeal on grounds that it was served out of time. This Court, (Githinji, JA, Mwilu, JA (as she then was) and Kantai, JA. allowed the applicants’ application on 25th September, 2015 and struck out the notice of appeal. 8.Dissatisfied with this ruling, the respondents filed another application on 18th December, 2015 before this Court, seeking leave to enlarge time within which to file and serve a notice of appeal arising from the ruling of Mutungi, J. of 14th July, 2014. Musinga, J.A. allowed the respondents’ application and granted them leave to file and serve a notice of appeal out of time within seven days from the date of the ruling i.e., on 6th September, 2016. The respondents filed another notice of appeal on 22nd September, 2016 well within the prescribed timeline, but failed to file the record of appeal within the prescribed period. After the respondents failed to file the record of appeal on time, on 18th November, 2016, they filed another application seeking leave to enlarge the time within which to file and serve a record of appeal. Warsame, J.A. (as he then was), dismissed the respondents’ application with costs on 23rd January, 2017. 9.The matter proceeded for formal proof, and judgment was entered in favour of the applicants on 19th December, 2018. The applicants extracted a decree and filed a bill of costs for taxation. The respondents then proceeded to file an application for stay of execution and further proceedings, and further sought to set aside the judgment of the trial court of 19th December, 2018. In the process, the parties by consent agreed to dispense with the hearing of the applications and proceeded for fresh formal proof on 14th November, 2019. The defence hearing proceeded on 26th February, 2021. Subsequently, judgment was delivered on 15th June, 2021 by the trial court. On 24th June, 2021, the respondents after being served with the applicants’ bill of costs and notice of taxation, forwarded a copy of a notice of appeal filed online on the said date of 24th June, 2021. It is this notice of appeal and the failure to file the record of appeal within the stipulated timelines that has birthed this application. 10.The application was heard virtually on 23rd March, 2026, by way of written submissions, with oral highlights. At the hearing, learned counsel Ms. Mbirwe appeared for the appellant. There was no appearance for the respondents, though the firm of Gachanja & Company Advocates are on record for the respondents. The Court was satisfied that service was proper. The applicants’ written submissions are dated 16th December, 2021. 11.In the applicants’ written submissions and the supporting affidavit sworn by Ms. Julie Mukami Kanyoko, the 1st applicant herein, they have given a chronology of events and the long history of this suit, starting with the plaint they filed on 20th May, 2011. She states, inter alia, that the respondents’ advocates while responding to the applicants’ email serving them with the bill of costs and notice of taxation, forwarded a copy of a notice of appeal filed online on the same date of 24th June, 2021. 12.The applicant contends that the purported notice of appeal is not signed by the Deputy Registrar, does not bear the court’s official stamp as required by law, and there is no receipt for the same to prove that it was actually filed in court on the said date. She deposed that the said notice of appeal is fatally defective and cannot avail the respondents herein. 13.She further deposed that that the notice of appeal having been served on 24th June, 2021, the respondents ought to have filed the record of appeal within 60 days from the date of filing the notice of appeal. In the instant case, it was now 69 days since the notice of appeal was purportedly filed and yet there is no record of appeal filed. She further contends that the respondents have not sought typed proceedings and certified decree from the Deputy Registrar of the superior court, which request, they are required to serve upon the applicants. The respondents have not complied with this requirement either. 14.She avers that the respondents have no intention of complying with the judgment of the superior court and are not serious in prosecuting this case and have filed the notice of appeal to clog the judicial system and delay the determination of the dispute between the parties. She further avers that it is over 60 days after the expiry of the period allowed by the rules for the lodgement of the intended appeal and no action has been taken by the respondents, and thus it is in the interest of justice that the notice of appeal before this Court be marked as withdrawn with costs to the applicants. The applicants rely on the case of Tropicana Hotels Limited v SBM Bank (Kenya) Limited [2020] eKLR. 15.The application is not opposed. Since the respondents did not appear to oppose this application, the Court has no benefit of hearing the respondents’ side of the story. There is no explanation for the delay in complying with the strict timelines provided in the Rules of this Court. The Court is therefore left with no option but to consider the applicants’ submissions and the law as it pertains to this matter. 16.From the perusal of the notice of motion, the grounds on the face of the application, affidavit in support thereof and the applicants’ written submissions, the main issue for determination is whether or not a case has been made to mark the appeal as withdrawn pursuant to rule 85(1) of this Court’s Rules. In the instance case, we are being called upon to exercise unfettered discretion, which we must exercise judiciously, not capriciously. Indeed, the matters raised by the application are largely factual and points to the dilatory conduct of the respondents. 17.Rule 85 (1) of this Court’s Rules provide —“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 and the Court may, on its own motion or on application by any other party, make such order.” 18.The respondents contend that they filed their notice of appeal on 24th June, 2021 via email. Assuming that the notice of appeal filed by the respondents is in order, the respondents ought to have filed their record of appeal within 60 days from the date of lodging the notice of appeal. Rule 84 of this Court’s Rules provides —“Subject to rule 118, an appeal shall be instituted by lodging in the appropriate registry, within sixty days after the date when the appeal was lodged—a.A memorandum of appeal, in four copies;b.The record of appeal, in four copies;c.The prescribed fees; andd.Security for the costs of the appeal:Provided that where an application for a copy of the proceedings in the superior court has been made in accordance with subrule (2) within thirty days after the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy.” 19.As of the time the applicants filed this application, it was sixty- nine days past the date when the alleged notice of appeal was filed and the respondents had not complied with the Court’s directions. Even without going to the grounds adduced by the applicants, rule 83 is such that the withdrawal of notice of appeal is automatic by effluxion of time if the sixty-day window passes without action. If the respondents wish to pursue their appeal, they must approach this Court under rule 4 for extension of time and must provide reasonable explanation for the delay and demonstrate that the intended appeal is arguable. 20.The history of this matter depicts respondents who are abusing the court process by filing repetitive motions and basically litigating in pieces. This is case is similar to the proverbial Jarndyce v Jarndyce, the fictional probate case in Bleak House (1852-53) by Charles Dickens. This is the fifth time the respondents are seeking the intervention for their own inaction. They must understand that equity aids the vigilant and not the indolent. And he who seeks equity must do equity. The respondents’ conduct in this suit has been fraught with omissions, inactions, constant delays and inability to comply with court timelines which are well prescribed in law. The respondents are clearly taking this Court’s discretion for granted, but to what end? 21.For the reasons above, this application is allowed. Accordingly, since the respondents have failed to institute an appeal within the appointed time, the notice of appeal date 24th June, 2021 is hereby deemed as withdrawn pursuant to rule 85 of the Court of Appeal Rules, with costs to the applicants. DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY, 2026.D. K. MUSINGA, (PRESIDENT)........................................JUDGE OF APPEALPAUL LILAN........................................JUDGE OF APPEALDR. J. O. OKELLO........................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR