https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1114

Muchiri v Kenya Airways Ltd (Civil Appeal (Application) E353 of 2021) [2026] KECA 1114 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1114 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E353 of 2021 GV Odunga, HI Ong'udi & B Ongaya, JJA June 12, 2026 Between Andrew Muchiri Appellant and Kenya Airways Limited Respondent (Being an application to strike out the Notice of Appeal dated 21st June 2021 and Record of Appeal dated 2nd July 2021 arising from the Judgment of the Employment and Labour Relations Court at Nairobi (Abuodha, J.) dated1st March, 2019inELRC Cause No. 469 of 2014 Cause 469 of 2014 ) Ruling 1.Kenya Airways Limited filed the notice of motion dated 17th August 2021, expressed to be brought under Rules 77(1) and 84 of the Court of Appeal Rules, 2022, seeking the following orders:i.That the appellant’s notice of appeal dated 21st June 2021 and record of appeal dated 2nd July 2021 be struck out.ii.That the costs of this application be awarded to the applicant. 2.The application is supported by the grounds set out on its face and in the affidavit of Joy Impano, who avers that the appellant had sought leave from this Court through an application dated 27th June, 2019 in Civil Application No. NAI 191 of 2019, to file and serve his notice of appeal out of time. The Court heard the said application and by its ruling of 18th June, 2021, granted the appellant leave to file his notice of appeal within 14 days from the date of the ruling. However, the appellant, who had until 1st July, 2021 to serve the notice of appeal on the applicant or its advocates, failed to comply contrary to Rule 77(1) of this Court’s Rules. That the appellant has therefore demonstrated an inability to adhere to rules of procedure and court direction, where discretion had been exercised in his favour. That, as it stands, the notice of appeal is invalid and the appellant’s record of appeal is defective and incapable of prosecution. 3.The respondent opposes the application through a replying affidavit sworn on 22nd September 2021 by his advocate, Gideon Nakhone. The respondent maintains that following the ruling delivered on 18th June, 2021 by Karanja, JA, they prepared a notice of appeal which they filed at the ELRC for execution on 21st June, 2021. That they were only able to collect the executed and stamped notice of appeal on 24th June, 2021 and filed the same with this Court on 25th June, 2021 via e-filing. According to the respondent, they had until 7th July, 2021 to effect service upon the applicant as per Rule 77 of the Court of Appeal Rules. That they prepared the record of appeal and filed the memorandum on 2nd July, 2021, and instructed their process server to effect service of the notice of appeal, memorandum and record of appeal on the applicant herein. 4.Mr. Nakhone further avers that the firm faced economic challenges from 6th July, 2021 and had to downsize. That as a result, they lost several associates and subordinate staff, including the process server tasked with effecting service of the said notice of appeal, memorandum and record of appeal. He acknowledges that the firm discovered that service of the said documents had not been effected when the remaining staff began taking up assignments of the staff that had left. That nevertheless, service was subsequently effected upon the applicant’s advocates on 28th July, 2021, and they are therefore aware of the respondent’s intention to proffer the instant appeal.That the applicant’s notice of motion dated 17th August, 2021 should be dismissed with costs to the respondent and the appeal set down for hearing. 5.In its submissions, the applicant argues that the respondent served the record of appeal on 28th July, 2021, with the notice of appeal tucked in somewhere, and that he did not seek the leave of this Court to file the notice of appeal out of time. That the requirement to serve the notice of appeal within 7 days is couched in mandatory terms as aptly set out by this Court in Daniel Nkirimpa Monirel v Sayialel Ole Koilel & 4 Others [2016] eKLR. That without a valid notice of appeal, the appellant’s record of appeal is fatally defective and cannot stand, as concluded by this Court in Mistry Premji Ganji (Investments) Limited v Kenya National Highways Authority [2019] eKLR. 6.The applicant further argues that the respondent’s justification that his advocates’ firm was downsizing is not excusable, as service of an already filed notice does not have to be done by the firm and could have been outsourced to any court process server. They submit that the respondent was only able to file his notice of appeal beyond the time stipulated by law because the Court exercised its discretion in his favour in Civil Application No. NAI 191 of 2019. That this Court’s discretion should not be exercised in favour of a party unable to follow the rules of procedure and court direction, when discretion has been exercised in his favour. The applicant urged the Court to be persuaded by the ruling in Nzai & 57 others v Invesco Assurance Co. Ltd (Miscellaneous Civil Application 51 of 2019) [2022] KECA 66 (KLR) (21 January 2022) to find that failure to serve as required in the rules is in blatant disregard of the rules, which renders the appeal invalid as filed, and to consequently strike out both the notice and record of appeal with costs to the applicant. 7.On the other hand, the respondent submits that this Court ought to consider that 2021 accounted for recovery from the COVID-19 pandemic and that the respondent’s advocates' downsizing was not an isolated case. He cites the decisions of the Court of Appeal in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] eKLR on the intentions and conduct of an offending party and Cecilia Wanja Waweru v Jackson Wainaina Muiruri & another [2014] eKLR on inordinate delay. The respondent argues that the instant appeal should be disposed of on its merits. 8.The application was listed for hearing on 25th February, 2026. Learned counsel Mr. Kinyua appeared for the respondent while Ms. Impano was present for the applicant. Both counsel reiterated the parties’ arguments as set out in the respective written submissions. Counsel for the respondent confirmed that as submitted for the applicant service of the notice of appeal was out of time as it was late and no leave had been sought or obtained with respect to the belated service. It was submitted that it was open for the respondent to regularize the belated service. For the applicant, it was submitted that under rule 79 of the rules of this Court, it was mandatory to serve the notice of appeal within 7 days of its lodging but the respondent had failed to comply following the leave that had been granted to file and serve the notice of appeal out of time. 9.We have considered the rival submissions and find that the respondent has conceded the failure to serve the notice of appeal within time contrary to the mandatory provisions of the applicable rule and pursuant to the leave that had been granted. Furthermore, he never sought further leave to regularize the position. We find that the applicant has established justification for granting of the application. 10.In conclusion, the application is hereby allowed with orders that the respondent’s notice of appeal dated 21st June 2021 and record of appeal dated 2nd July 2021 are hereby struck out, and, the respondent to pay costs of the application. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE, 2026.G. V. ODUNGA....................................JUDGE OF APPEALG. I. ONG’UDI....................................JUDGE OF APPEALB. ONGAYA....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR