https://new.kenyalaw.org/akn/ke/judgment/keca/2026/952

Gichobi v Barclays Bank of Kenya Limited (Civil Appeal (Application) E220 of 2022) [2026] KECA 952 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 952 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E220 of 2022 DK Musinga, P Lilan & JO Okello, JJA May 15, 2026 Between Josephat Githinji Gichobi Appellant and Barclays bank of kenya Limited Respondent (Being an application to strike out the Record of Appeal against the judgment and decree of the Environment and Land Court of Kenya at Kajiado (Gicheru, J.) dated 25th November 2021 in ELC Appeal No. E06 of 2021) Ruling 1.Before this Court is a Notice of Motion dated 12th May 2022 which is brought under rules 42, 43, 82, 83 and 84 of the Court of Appeal Rules, 2010 and section 72(1) of the Civil Procedure Act, seeking to strike out the Record of Appeal dated 11th April 2022 and filed on 13th April 2022 in Civil Appeal No. E220 of 2022, with costs. In the alternative, the applicant seeks that the Notice of Appeal dated 7th December 2021 and filed on 9th December 2021 be deemed as withdrawn. 2.The application is based on the grounds set out on the face of the Notice of Motion and supported by the affidavit sworn by Thomas K. Njuguna, learned counsel for the respondent/applicant, (hereinafter referred to as “the applicant”). It is deponed that the Environment and Land Court at Kajiado delivered judgment in Kajiado ELC Appeal No. E06 of 2021 on 25th November 2021. Following that judgment, the appellant/respondent (hereinafter referred to as “the respondent”) lodged a Notice of Appeal on 9th December 2021, which was served upon the applicant’s advocates on 16th December 2021. The respondent thereafter filed the Memorandum and Record of Appeal on 13th April 2022 and served the same on 14th April 2022. 3.It is further deponed that no request for proceedings was served upon the applicant as required under rule 82(1) and (2) of the Court of Appeal Rules, 2010, and therefore, time for instituting the appeal was not suspended. In those circumstances, the applicant contends that the appeal was instituted outside the mandatory period of sixty (60) days from the date of lodging the notice of appeal, having been filed approximately 117 days thereafter. In addition, it is deponed that even taking into account the certificate of delay relied upon by the respondent, which indicates that 46 days were required to prepare certified copies of the proceedings, judgment and decree, (ie between 29th November 2021 and 14th February 2022,) the appeal was still filed out of time, namely, after 62 days, contrary to rule 82(1) of the Court of Appeal Rules, 2010. 4.On that basis, the applicant invokes rule 83 of the Court of Appeal Rules, 2010 contending that the respondent is deemed to have withdrawn the notice of appeal for failure to institute the appeal within time. The applicant therefore urges this Court to formally mark the notice of appeal as withdrawn. 5.In addition, the applicant contends that the record of appeal is incurably defective for failure to include a decree arising from the judgment of the Environment and Land Court contrary to rule 87(1)(h) of the Court of Appeal Rules, 2010. It is thus contended that this omission renders the record of appeal incompetent and liable to be struck out. 6.In light of the foregoing, the applicant maintains that the appeal is incompetent and therefore improperly before this Court. The applicant accordingly prays that the record of appeal be struck out with costs, or, in the alternative, that the notice of appeal be deemed as withdrawn. 7.The application is opposed by the respondent, who filed a replying affidavit sworn by Yvonne Mati, learned counsel on record. It is deponed that, being dissatisfied with the impugned judgment, the respondent instructed counsel to prefer an appeal to this Court. Pursuant to those instructions, counsel filed a notice of appeal dated 7th December 2021 on 9th December 2021 and applied for certified copies of the judgment, typed proceedings, decree and a certificate of delay vide a letter dated 29th November 2021. 8.As regards the computation of time for filing the appeal, it is averred that the period of the Christmas vacation is excluded pursuant to rule 3(e) of the Court of Appeal Rules, 2010 and Order 50 rule 4 of the Civil Procedure Rules. 9.It is further deponed that a certificate of delay was issued on 17th February 2022 indicating that the time taken to prepare and supply certified copies of the proceedings ran from 29th November 2021 to 14th February 2022, being 46 days. The said certificate was served upon the applicant’s advocates by email on 18th February 2022. 10.The respondent further avers that despite making follow-ups with the registry, including correspondence copied to the applicant’s advocates, a signed decree was not supplied in time. Consequently, the respondent proceeded to file the Memorandum and Record of Appeal on 13th April 2022, in the absence of the decree, and served the same on 14th April 2022. 11.It is therefore contended that, taking into account the period certified as delay and the exclusion of the court vacation, the appeal was lodged within time and is properly on record. The respondent maintains that the present application therefore lacks merit and that the notice of appeal cannot be deemed as withdrawn under rule 83 of the Court of Appeal Rules, 2010. 12.At the hearing of this application, only learned counsel Mr. Kimani appeared for the applicant. There was no appearance for the respondent, despite service of the hearing notice. It is also noteworthy that only the applicant filed written submissions. 13.Highlighting the applicant’s written submissions dated 15th January 2026, counsel contended that the application was properly before this Court, having been filed within thirty days of service of the record of appeal as required under rule 84 of the Court of Appeal Rules, 2010. 14.Counsel further reiterated that no request for certified copies of typed proceedings was served upon the applicant, either physically or electronically, as required under rule 82(1) and (2) of the Court of Appeal Rules, 2010. It was contended that although the respondent filed a replying affidavit, the failure to serve the letter bespeaking proceedings was not controverted and that the letter relied upon did not demonstrate service. In support of that position, counsel relied on Mistry Premji Ganji (Investments) Limited v Kenya National Highways Authority [2019] eKLR, for the proposition that a party cannot benefit from the exclusion of time under rule 82 in the absence of proof of service of the request for proceedings. 15.On the issue of timelines, counsel submitted that since the notice of appeal was filed on 9th December 2021, the record of appeal ought to have been filed within sixty days, excluding the Christmas vacation period running from 21st December 2021 to 13th January 2022, both days inclusive. It was contended that the sixty-day period lapsed on 3rd March 2022, yet the Memorandum and Record of Appeal were only filed on 13th April 2022, more than forty days outside the prescribed timeline and approximately 117 days from the date of lodging the notice of appeal. 16.Counsel further submitted that even if the certificate of delay issued on 17th February 2022 were taken into account, it still confirmed that the appeal was filed out of time. In particular, it was contended that proceedings were ready for collection on 14th February 2022, and the appeal having been filed on 13th April 2022, a period of 58 days had elapsed. When added to the 11 days between 9th December 2021 and 21st December 2021, the total period came to 69 days, which exceeded the prescribed sixty days. The record of appeal had therefore been filed out of time and without leave of this Court. 17.Relying on rule 83 of the Court of Appeal Rules, 2010, counsel maintained that the respondent is deemed to have withdrawn the notice of appeal for failure to institute the appeal within the prescribed time. In support of that position, reliance was placed on Mae Properties Limited v Joseph Kibe & Another [2017] eKLR, where this Court affirmed that failure to institute an appeal within time renders the notice of appeal liable to be deemed withdrawn. 18.As regards the competence of the record of appeal, counsel submitted that the same is defective for failure to include a decree of the Environment and Land Court as required under rule 87(1)(h) of the Court of Appeal Rules, 2010. It was contended that the respondent cannot shift blame to the court registry for failure to obtain the decree, particularly when other documents were obtained from the same registry, and that the continued absence of the decree renders the record incomplete. 19.To buttress that argument, counsel relied on Bwana v Bonaya & 2 Others [2015] KESC 8 (KLR), where the Supreme Court held that a court cannot exercise its adjudicatory jurisdiction without a complete record of appeal, and that an incomplete record deprives the court of the ability to determine the issues before it. On that basis, counsel urged this Court to find that the record of appeal is incompetent and liable to be struck out. 20.We have considered the application, the affidavits, the rival positions taken by the parties, and the applicable law. The issues that arise for determination are whether the appeal pending for determination before this Court was instituted within the time prescribed under rule 82(1) of the Court of Appeal Rules, 2010, and whether the record of appeal is competent in the absence of a certified decree as required under rule 87(1)(h) of the Court of Appeal Rules, 2010. 21.Rule 82(1) of the Court of Appeal Rules, 2010 is explicit that an appeal must be instituted within sixty days of the lodging of the notice of appeal. The proviso to that rule permits exclusion of time certified as necessary for preparation of proceedings, but only where the appellant has applied for such proceedings in writing within thirty days and served that request upon the respondent in accordance with rule 82(2). 22.In the present matter, it is common ground that the notice of appeal was filed on 9th December 2021 and that the record of appeal was filed on 13th April 2022. The respondent contends that it applied for proceedings by an email dated 29th November 2021 and relies on a certificate of delay issued on 17th February 2022 certifying 46 days between 29th November 2021 and 14th February 2022. However, from our perusal of the record, it is clear to us beyond any peradventure that the email sent to the court on 29th November 2021 requesting for certified copies of typed proceedings was not copied to the applicant’s advocates. Further, the letter to the Deputy Registrar attached to that email does not bear any mark evidencing receipt by the applicant’s advocates. In contrast, the record shows that only the certificate of delay was served upon the applicant’s advocates by email dated 18th February 2022, and a subsequent email dated 23rd February 2022 forwarding a draft decree. 23.In the circumstances, the respondent failed to demonstrate compliance with rule 82(2). The burden lay squarely upon the respondent to prove service of the letter bespeaking proceedings, and that burden was not, in our view, discharged. The consequence is that the respondent cannot rely on the certificate of delay to exclude time. This position accords with the holding of this Court in Mistry Premji Ganji (Investments) Limited v Kenya National Highways Authority (supra), where the Court made it clear that the suspension of time under the proviso to rule 82(1) is only available where a written request for proceedings has been made and duly served upon the respondent and that in the absence of such service, an appellant is bound to institute the appeal within the strict sixty-day period, and cannot shift blame to the court registry or invoke a certificate of delay to cure non-compliance. 24.In the premises, and in the absence of compliance with the proviso to rule 82(1), time for instituting the appeal began to run uninterrupted from 9th December 2021. The respondent was therefore required to lodge the record of appeal within sixty days of that date, subject only to the exclusion of the Christmas vacation where applicable. Instead, the record of appeal was filed on 13th April 2022, well outside the prescribed period, and without any leave of the Court to validate such late filing. 25.Even if, for argument’s sake, we were to take into account the certificate of delay issued on 17th February 2022, the outcome would remain the same. The certificate shows that proceedings were ready for collection on 14th February 2022. From that date to 13th April 2022, a period of 58 days elapsed. When this is added to the 11 days between 9th December 2021 and 21st December 2021, prior to the commencement of the Christmas recess, the total period comes to 69 days, which exceeds the sixty-day limit prescribed under rule 82(1). Therefore, the certificate of delay, even if properly invoked, does not avail the respondent. 26.The effect of failure to institute an appeal within time is provided under rule 83 of the Court of Appeal Rules, 2010.This Court has previously explained the purpose and effect of that provision. 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.” 27.Similarly, in Kericho Technical Institute v Finmax Community Based Group & 3 others [2016] eKLR, this Court affirmed that failure to take essential steps towards instituting an appeal within time renders a notice of appeal incompetent and liable to be struck out. In the present case, the respondent’s failure to institute the appeal within the prescribed period coupled with the absence of any application for extension of time brings the matter squarely within the ambit of rule 83. 28.We now turn to the competency of the record of appeal. Rule 87(1) of the Court of Appeal Rules, 2010 prescribes the documents that must be included in a record of appeal in matters arising from the original jurisdiction of the superior court, including the judgment or order and the certified decree or order under rule 87(1)(g) and (h). It is common ground that the record of appeal filed on 13th April 2022 does not contain a certified copy of the decree. Although the respondent attributes this omission to the failure by the registry to supply the same despite follow-ups, the material on record discloses only an email dated 23rd February 2022 forwarding a draft decree to the court. There is no evidence of any further or sustained efforts to obtain the certified decree. 29.While practical difficulties may arise in obtaining court documents, as happens from time to time, the obligation to present a complete record nonetheless rests with the respondent. That obligation is further reinforced by rule 88 which permits an appellant to remedy such an omission by filing a supplementary record of appeal, without leave within fifteen days of lodging the record of appeal, and thereafter with leave of the Deputy Registrar. No such step was taken in the present case. 30.This Court in Salama Beach Hotel Limited v Mario Rossi [2015] eKLR considered the effect of the absence of a certified copy of the decree or order appealed from and expressed itself as follows:“This Court considered the effect of lack of a certified copy of the decree or order appealed from as required by rule 87(h) of the Court of Appeal Rules, in Floris Pierro V. Giancarlo Falasconi, CA No 145 OF 2012. The Court concluded that an appeal can only be against a decree or an order and that failure to include the order or decree appealed against renders the appeal fatally defective and incurable even under the overriding objective. In that case the order appealed from was not included. In the present appeal, the order is included but it is not certified. To the extent that the purpose of certification of the order is to confirm its authenticity, inclusion of an order that is not certified is, in our view, as bad as complete non- inclusion of the order.The Supreme Court has also added its voice on the issue in Bwana Mohamed Bwana V. Silvano Buko Bonaya, (supra). In that case Court struck out a record of appeal that did not contain, among others, a certified copy of the decree. On appeal to the Supreme Court, in addition to holding that the appeal did not involve issues of constitutional interpretation or application, the Court affirmed that the omission of mandatory documents from the record had the effect of rendering the appeal defective and incompetent and that a court could not exercise its adjudicatory powers where an appeal is incompetent. The Supreme Court concluded that a court could not exercise its jurisdiction where lawful, prior requirements had not been fulfilled.” 31.In the circumstances, we are of the considered view that the requirement that a record of appeal must contain a certified decree or order is neither technical nor optional. It is a prerequisite that goes to the very foundation of the Court’s jurisdiction. 32.In the end, and for the reasons we have set out, we are satisfied that Civil Appeal No. E220 of 2022 is incompetent. Accordingly, the applicant’s Notice of Motion dated 12th May 2022 is hereby allowed. The Record of Appeal dated 11th April 2022 and filed on 13th April 2022 is struck out with costs to the applicant. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY, 2026.D. K. MUSINGA (PRESIDENT)...................................JUDGE OF APPEALPAUL LILAN...................................JUDGE OF APPEAL DR. JOHNSON OKELLO...................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar