https://new.kenyalaw.org/akn/ke/judgment/keca/2026/985

Muniu v Ndung'u (Civil Application E079 of 2025) [2026] KECA 985 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KECA 985 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Application E079 of 2025 PM Gachoka, WK Korir & L Ndolo, JJA May 22, 2026 Between Charles Mwangi Muniu Applicant and Margaret Ndung'u Respondent (Application for orders that the notice of appeal dated 22nd April 2025 be marked as withdrawn) Ruling 1.This ruling determines the notice of motion dated 7th November 2025, by which the applicant Charles Mwangi Muniu, seeks orders that the notice of appeal dated 22nd April 2025 be marked as withdrawn. 2.The motion is supported by an affidavit sworn by the applicant and is premised on the grounds that; the respondent having filed a notice of appeal dated 22nd April 2025, has failed to take any further action towards filing of the appeal. The applicant therefore maintains that the respondent has lost interest in the appeal, adding that a notice of appeal, which is not backed by institution of an appeal is deemed to have been withdrawn. 3.In his affidavit in support of the motion, the applicant depones that judgment in Eldoret Matrimonial Cause No. E002 of 2024 was delivered on 11th April 2025. Being aggrieved by the outcome, the respondent lodged a notice of appeal dated 22nd April 2025. The respondent also filed an application dated 25th April 2025, seeking stay of execution of the judgment rendered by the High Court at Eldoret, which application was heard inter partes and a ruling delivered on 12th June 2025. 4.According to the applicant, typed and certified proceedings in Matrimonial Cause No. E002 of 2024 were ready by 5th August 2025, when his advocate obtained a copy. 5.The applicant goes further to depone that his advocates served a copy of the proceedings on the respondent’s advocates on 13th August 2025, both by electronic mail and through postal address. He relied on an affidavit of service in this regard. 6.The respondent, Margaret Ndung’u opposes the motion by her replying affidavit sworn on 1st May 2026. She depones that being aggrieved by the judgment delivered on 11th April 2025 in Matrimonial Cause No. E002 of 2024, she filed and served a notice of appeal within the prescribed time. 7.The respondent adds that alongside the notice of appeal served upon the applicant, was a letter dated 22nd April 2025, requesting for typed and certified copies of the proceedings and judgment, which was duly received by the applicant’s advocates. 8.The respondent advances the narrative that her advocates received a certified copy of the proceedings on 26th January 2026 and a certified copy of the judgment and decree on 27th January 2026. She refers to a certificate of delay signed by the Deputy Registrar of the High Court at Eldoret, confirming that it had taken 290 days from 22nd April 2025 to 26th January 2026, to prepare the typed proceedings. The respondent assails the authenticity of the proceedings relied on by the applicant. 9.The respondent further depones that her advocates filed a memorandum of appeal and record of appeal on 29th January 2026. She confirms that the appeal referenced as Civil Appeal No. E012 of 2026 is ripe for hearing. 10.In urging his motion, the applicant relies on rule 84(1) of the Court of Appeal Rules, which prescribes the following roadmap for institution of appeals:1.subject to rule 118, an appeal shall be instituted by lodging in the appropriate registry, within sixty days after the date when the notice of appeal was lodged-a.a memorandum of appeal, in four copies;b.the record of appeal, in four copies;c.the prescribed fee; and(c)security for 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.2.An appellant shall not be entitled to rely on the proviso to subrule (1) unless the appellant’s application for such copy was in writing and a copy of the application was served upon the respondent. 11.The effect of failure to comply with rule 84 is set out in rule 85 thus:1.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.2.The party in default under subrule (1) shall be liable to pay the costs arising therefrom of any persons on whom the notice of appeal was served. 12.We have considered the parties’ pleadings, submissions and cited authorities. Of significance is the undisputed fact that at the time we heard the application, the respondent had in fact filed her appeal. 13.The question then is whether this appeal is properly before the Court. On this account, we are persuaded by this Court’s decision in Esther Anyango Ochieng vs. Transmara Sugar Company [2020] eKLR where it was held that the presence or absence of a record of appeal at the time the Court is moved under rule 83 is a determining factor. 14.In her written submissions dated 1st May 2026, the respondent relied on this Court’s decision in Mohammed vs. Adan & 3 Others [2025] KECA 301 where it was affirmed that a certificate of delay issued by the Deputy Registrar of the superior court appealed from brought the record of appeal within the proviso to rule 84 of the Court of Appeal Rules. 15.In that decision, the Court went further to hold that the certificate of delay could not be said to be a sham merely because it was obtained and filed after the filing of an application for striking out of the notice of appeal. 16.This brings us to the issue of the correct version of the High Court proceedings. In urging the application before us, the applicant’s counsel relied on his own version of proceedings, which he claims to have served on the respondent’s counsel. With much respect to counsel, we must point out that there can only be one record of court proceedings, and this is the one containing a certificate of delay issued by the Deputy Registrar of the High Court. That is all we will say on this issue. 17.Finally, we have reached the conclusion that the respondent formally applied for certified proceedings and a copy of judgment within time. There is also evidence that the asking letter was served upon the applicant’s advocates. 18.Moreover, the Deputy Registrar of the High Court issued a certificate of delay dated 27th January 2026, confirming that it had taken 290 days to prepare the proceedings, and when the proceedings were issued to the respondent, she moved with speed to file her appeal. Such a party cannot be said to have slept on her right of appeal; her case falls neatly into the proviso to rule 84(1) of the Court of Appeal Rules. 19.The applicant’s application is therefore without merit and is dismissed with costs to the respondent. DATED AND DELIVERED AT ELDORET THIS 22ND DAY OF MAY, 2026.M. GACHOKA C.Arb, FCIArb..............................JUDGE OF APPEALW. KORIR..............................JUDGE OF APPEALL.M. NDOLO..............................JUDGE OF APPEALI certify that this is a true copy of the original.Deputy Registrar.