https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1103

Makunyi v Odhiambo & another (Civil Application E053 of 2021) [2026] KECA 1103 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1103 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E053 of 2021 WK Korir, MN Nduma & L Ndolo, JJA June 12, 2026 Between Samuel Kijogi Makunyi Applicant and John Lawrence Odhiambo 1st Respondent Standard Media Ltd 2nd Respondent (Being an application to strike out the Notice of Appeal dated 11th December 2018 and filed on 16th January 2019 against the judgment of the High Court of Kenya at Nairobi (Kamau, J.) dated 31st October 2018inHCCC No. 20 of 2017 Civil Case 20 of 2017 ) Ruling 1.Before this Court is a notice of motion dated 18th February 2021 brought by the applicant, Samwel Kijogi Makunyi, seeking orders that the notice of appeal dated 16th January 2019 be struck out and/or deemed withdrawn, and that costs of the application be provided for. The application is hinged on the grounds enumerated on its face as well as the averments contained in the affidavit sworn on 18th February 2021 by Dennis Kimakia, counsel for the applicant. 2.The background of the application, as narrated by the applicant, is that the applicant filed Nairobi High Court Civil Case No. 20 of 2017 (formerly Comm. 296 of 2016), against the respondents. Judgment was delivered on 31st October 2018 by Kamau, J. in favour of the applicant, awarding general damages of Kshs. 2,000,000, exemplary damages of Kshs. 1,000,000, costs and interest. After counsel for the applicant wrote to the respondents on 29th November 2018 seeking their approval of a draft decree, the respondents filed an application under a certificate of urgency on 6th December 2018 seeking leave to file a notice of appeal out of time. On 4th February 2019, a consent was recorded allowing the respondents to file a notice of appeal out of time and directing them to deposit the decretal amount in a joint interest-earning account within 90 days. This was followed by the respondents’ letter requesting proceedings. Thereafter, the respondents took no further positive action towards the prosecution of their intended appeal. 3.The applicant wrote to the Deputy Registrar of the High Court on 23rd October 2019, requesting proceedings and paid the requisite deposit. The proceedings were typed, and a notice that the proceedings were ready was issued on 13th December 2019. The applicant then notified the respondents of the readiness of the proceedings on 16th December 2019. It was the applicant’s averment that despite such notification, the respondents had not taken any step to prosecute their intended appeal. 4.The respondents did not file a response to the motion. 5.When the matter came up for hearing, learned counsel Mr. Kimakia appeared for the applicant. There was no appearance for the respondents despite service of the hearing notice. Mr. Kimakia sought to rely on his written submissions dated 17th February 2026 to prosecute the motion. 6.In the submissions, counsel argued that the Notice of Appeal had lapsed by operation of rule 86 of the Court of Appeal Rules, which provides that a person affected by an appeal may apply to strike out the Notice of Appeal or the appeal on the ground that no appeal has been instituted within the prescribed time. Counsel further submitted that rule 84 of the Court of Appeal Rules requires institution of an appeal within sixty (60) days of lodging the notice of appeal. According to counsel, more than seven years had lapsed from the time the notice was filed with no record of appeal filed and no explanation offered by the respondents. Relying on Quicklubes E. A. Limited v Kenya Railways Corporation [2014] eKLR, counsel submitted that this Court has unfettered discretion to deem an appeal as withdrawn where a party files a notice of appeal and then goes to slumber, failing to initiate the necessary processes to ensure the appeal is filed and served. Counsel cited Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Another [2014] KEHC 7255 (KLR) for the proposition that a delay is inexcusable if it is shown to be intentional and contumelious, particularly where there has been disobedience of a peremptory order of the court. Finally, reliance was placed on John Mutai Mwangi & 26 Others v Mwenja Ngure & 4 Others [2016] eKLR, in which the Court found that a notice of appeal was withdrawn after the respondent failed to institute the appeal within the prescribed time. 7.The sole issue for our determination is 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. 8.This application was brought under rules 42, 43(1), 75(1), 82(1),83 and 85 of the Court of Appeal Rules, 2010. The Court of Appeal Rules, 2010 have since been replaced by the Court of Appeal Rules, 2022. From the language used in the application; “be struck out and/or deemed withdrawn”, it is apparent that the application straddled rules 83 and 84 of the 2010 Rules. In the prevailing 2022 Rules, the equivalent of those provisions are rules 85 and 86. Whereas the application would be incompetent were it solely brought under rule 84 which required an application to strike out a Notice of Appeal or appeal to be brought within 30 days from the date of the service of the Notice of Appeal or the record of appeal, the application survives because rule 83 which provided for the deeming of a notice of appeal as withdrawn, for failure to file the record of appeal, was, unlike rule 84, not encumbered by any timeline. 9.Having dispensed with what may have appeared to be a jurisdictional challenge, we proceed to consider the merits of the motion. The rationale of rule 83 (now rule 85) was explained in Mae Properties Limited v Kibe & Another [2017] KECA 238 (KLR) as follows:“We think that the true meaning and import of the rule is more often than not scarcely appreciated. The rule as framed prescribes the legal consequence for non- institution of an appeal within the 60 days appointed by the Rules of Court. Moreover, the said consequence is couched in mandatory, peremptory terms: the offending party shall be deemed to have withdrawn the appeal. It seems to us that the deeming sets in the moment the appointed time lapses.14. 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. It may also be resuscitated or vivified by an order extending time for the lodging of the appeal properly made by a single Judge on a Rule 4 application. Absent those supervening circumstances, the notice of appeal dies in the eyes of the law. Its interment may then take the form of an order of the court suo motu, on its own motion and at its sole discretion, presumably with neither notice nor reference to the parties. The Court has this inherent power to make the formal order of the notice having been deemed as withdrawn…” 10.The law governing the institution of appeals, at the time relevant to this application, was well settled. Rule 82(1) of the Court of Appeal Rules, 2010 provided that a party who has lodged a Notice of Appeal was required to institute the appeal within sixty (60) days of lodging the Notice of Appeal. The rule, however, allowed for the exclusion of the time taken to prepare certified copies of proceedings where the appellant had applied for them within thirty (30) days of lodging the Notice of Appeal. However, this does not grant an indefinite moratorium. The appellant must demonstrate diligence in pursuing the proceedings. Thus, in Mae Properties Limited v Kibe & Another (supra), the Court deduced these requirements as follows:“Under the same Rule 83, and assuming that the Court will not have sooner made the deeming order, a party may move the court to make it. We think that it is a simple application that is required to show only that the 60 days appointed have elapsed without an appeal having been lodged. Once those two facts are established, we do not see why the Court should not, unless persuaded by some compelling reason in the interests of justice, simply make the order deeming the notice of appeal as withdrawn.” 11.In the present case, the Notice of Appeal was lodged on 16th January 2019 and close to seven (7) years later, no record of appeal has been filed. The respondents requested proceedings on 13th February 2019, but did not pay the requisite deposit. It was the applicant who, upon noticing the indolence, paid the deposit for the proceedings on 23rd October 2019. The proceedings were ready on 13th December 2019, and the respondents were notified on 16th December 2019. Yet, to date, they have taken no action to progress their appellate quest. 12.In the absence of any explanation from the respondents regarding their failure to prosecute the intended appeal for nearly seven (7) years, the only inference this Court can draw is that they have abandoned their intended appeal. Their conduct amounts to an abuse of the court process. In John Mutai Mwangi & 26 others v Mwenja Ngure & 4 Others [2016] KECA 655 (KLR), the Court held that:“… 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.” 13.The respondents have clearly failed to institute their appeal within the appointed time. 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. For whatever it is worth, the respondents’ Notice of Appeal must be struck out at this juncture. 14.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. 15.The application having proceeded undefended, we make no order as to costs. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026.W. KORIRJUDGE OF APPEAL.....................................NDUMA NDERIJUDGE OF APPEAL.....................................L. M. NDOLOJUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR