https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1580

Juja Coffee Exporters Ltd & 3 others v Bank of Africa Kenya Ltd & 4 others (Civil Appeal (Application) E185 of 2024) [2026] KECA 1580 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1580 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal (Application) E185 of 2024 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 31, 2026 Between Juja Coffee Exporters Limited 1st Applicant TSS Transporters Limited 2nd Applicant TSS Investment Limited 3rd Applicant The Executors of the Estate of Tahir Sheikh Said Ahmed 4th Applicant and Bank Of Africa Kenya Limited 1st Respondent Kaab Investment Limited 2nd Respondent Abdulmajid Mohamed Haji Adam 3rd Respondent Shami Motors Limited 4th Respondent IFJ Paradise Properties Limited 5th Respondent (An application to strike out the Record of Appeal dated 10th September 2024 and the Notice of Appeal dated 25th July 2024 in Civil Appeal No. E185 of 2024, an appeal from the Ruling and Order (Kibunja, J.) delivered on 24th July 2024 in MSA ELC No. E049 of 2023) Ruling 1.By way of a Notice of Motion dated 23rd October 2024 brought under Sections 3A and 3B of the Appellant Jurisdiction Act, Cap. 9 and Rule 84 of the Court of Appeal Rules, 2010, Juja Coffee Exporters Limited, T.S.S. Transporters Limited, T.S.S, Investment Limited and The Executors of The Estate of Tahir Sheikh Said Ahmed (the applicants), the 1st to 4th respondents in the appeal, are seeking orders:i.that the Record of Appeal dated 10th September 2024 and Notice of Appeal dated 25th July 2024 in Mombasa Court of Appeal Civil Appeal No. E185 of 2024 be struck out; andii.that the costs of this application and of the struck-out appeal be borne by the 1st respondent. 2.The 1st respondent, Bank of Africa Limited, is the appellant in the appeal. 3.We hasten to state that, for good order and reference to parties in this ruling, we have re-organised the serialisation of the parties in the heading. We do not wish to refer to the 1st to 4th respondents as they are named in the Motion, yet they are the applicants. Accordingly, the applicants are serialised as such while other parties flow in their order as respondents starting with the appellant in the appeal as the 1st respondent. 4.The application is premised on the grounds set out on its face and the supporting affidavit of Nurein Tahir Sheikh Said, the applicants’ Director, and having authority of the 1st, 2nd, 3rd and 4th applicants to depose the same. He deposed that, on 30th September 2024, their counsel was served with the Record of Appeal dated 4th September 2024 and the Notice of Appeal dated 25th July 2024; that there is no evidence that the Notice of Appeal was lodged in Court as required under Rule 10 of this Court’s Rules, 2022; that Rule 79(1) of this Court’s Rules provides that a Notice of Appeal should be served within 7 days of filing; and that the Notice of Appeal was not served upon the 2nd respondent, Kaab Investments Limited, nor has leave been sought to serve it out of time. 5.It was further deposed that the Record of Appeal was not served upon one Peter Nyaga Njoka and Hellen Wanjiru Nyaga, who were parties in the matter before the Environment and Land Court (the ELC); that lack of service upon Peter Nyaga Njoka and Hellen Wanjiru Nyaga denies the applicants the statutory right of cross-appeal against the part of the decision which struck out the suit against them; and that the Record of Appeal has omitted to include several documents which are mentioned in its Index to be at pages 300-399, 655, 667 and 668, which documents, it is alluded, are critical to the determination of this appeal. 6.Opposing the application on behalf of the 1st respondent, one Peter Ng’eno, a licenced process server, filed an affidavit sworn on 30th June 2025 by which he states that, in relation to service upon the 5th respondent with the Notice and Record of Appeal, the 1st respondent withdrew the appeal against it on 11th November 2024 when the application for stay of execution of the impugned ruling came up for hearing before this Court; that, as for the 5th respondent, I.F.I. Paradise Properties Limited, its counsel Muturi, Gakuo & Kibara Advocates, confirmed that it was served with the Notice and Record of Appeal on 11th November 2024; that the applicants have not shown the prejudice they have suffered for lack of service of the Notice and Record of Appeal upon the 5th respondent. 7.It was further deposed that the prayers to strike out the Notice and Record of Appeal cannot be sustained since, vide a ruling dated 21st March 2025, this Court found that the appeal is arguable and, if stay is not granted, it would be rendered nugatory and, accordingly, allowed the stay application; and that the instant application can only be merited if orders in the said ruling are first set aside. 8.With regard to the exclusion of Peter Nyaga Njoka and Hellen Wanjiru Nyaga from the appeal, it was deposed that the 1st respondent who was the 1st defendant in the trial court, was sued by the applicants who were the plaintiffs; that the 1st applicant did not sue Peter Nyaga Njoka and Hellen Wanjiru Nyaga and, hence, has no interest in them; and that the applicants are at liberty to file a cross-appeal or a separate appeal against Peter Nyaga Njoka and Hellen Wanjiru Nyaga. 9.As to the alleged missing documents, namely the Notice of Motion dated 19th January 2024 and its annexures, it was stated that they are at pages 352-672 of the Record of Appeal; that the application is fatally defective and incompetent for the reasons that it is premised under Rule 84 of the repealed Court of Appeal Rules, 2010 instead of Rule 86 of the Court of Appeal Rules, 2022; and that Rule 86 provides that an application to strike out a Notice of Appeal or Record of Appeal should not be brought after expiry of 30 days after service, but that the instant application was filed on 23rd October 2024, three months after filing and service of the Notice of Appeal. 10.As for the 4th respondent, Shami Motors Limited, one Joseph Karanja Kanyi, counsel having the conduct of the matter on its behalf, filed a replying affidavit sworn by himself on 6th February 2026 stating that, on 25th October 2024, they were served with a Notice of Appeal dated 25th July 2024 through an email which indicated all the recipients thereto, including the applicants’ counsel; that the Notice of Appeal shows that it was filed on 25th July 2024; that the appeal against the 2nd respondent was withdrawn, and that the 2nd respondent has not raised any objection to the withdrawal; that, therefore, the applicants cannot purport to speak on behalf of a person who is not a party to the appeal; and that the applicants are guilty of material non-disclosure and, consequently, the application should be dismissed. 11.We heard this application on a virtual platform on 17th February 2026. In attendance were learned counsel: Mr. Gikandi holding brief for Mr. Kongere for the applicants; Mr. Wawire for the 1st respondent; Mr. Achoka for the 4th respondent; and Mr. Gakuo for the 5th respondent. All counsel wholly relied on their respective parties’ written submissions without any oral highlights. 12.The applicants filed submissions dated 30th June 2025. It was submitted that failure to lodge and have the Notice of Appeal endorsed by the Deputy Registrar in accordance with Rule 77(1) of this Court’s Rules renders it defective as was held by this Court in Salama Beach Hotel Limited & 4 Others vs. Kenyariri & Associates Advocates & 4 Others (2016) KECA 447 (KLR); and Asiligwa vs. Baumgartner & Another (2021) KECA 308 (KLR); that even if the Notice of Appeal was properly lodged, the same ought to be served upon all persons directly affected by the appeal as per Rule 79 as was held by this Court in Onjula Enterprises vs. R. K. Sumaria (1986) KECA 67 (KLR); and David Kiptugen vs. Commissioner of Lands, Nairobi & 4 Others (2016) KECA 712 (KLR); that it was improper that Peter Nyaga Njoka and Hellen Wanjiru Nyaga were struck out from the suit, yet they would be directly affected by the appeal, and that, for this reason, they should have been served; and that the email through which the Record of Appeal was served shows that service was not effected upon the two as well as 13.The 1st respondent’s submissions are dated 30th June 2025, by which it prays that the application be dismissed for being defective and incompetent for the reason that it was filed out of time contrary to Rule 86 of this Court’s Rules. To buttress this submission, reliance was placed on the decision of this Court in The Registered Trustees of Ruiru Sports Club vs. Njeru Nyaga & Co. Advocates LLP (2025) KECA 1124 (KLR); that further, the application is overtaken by events for the reasons that the ruling by this Court delivered on 21st March 2025 determined that the intended appeal is arguable; and that, as such, the instant application can only succeed if and after the afore-stated ruling of this Court is set aside. 14.According to the 1st respondent, the applicants have not demonstrated the prejudice they will suffer merely because the 2nd and 5th respondents were not served and also because the appeal was withdrawn against the 2nd respondent; that, furthermore, the 5th respondent is supporting the appeal; and that Peter Nyaga Njoka and Hellen Wanjiru Nyaga are automatically ousted from the appeal because the suit against them was struck out and, as such, the 1st respondent has no basis pursuing an appeal against them. 15.We have considered the application, the responses in opposition to the application, the respective parties’ written submissions and the authorities relied upon. The sole issue that commends itself for our determination is whether the Notice of Appeal dated 25th July 2024 and the Record of Appeal dated 10th September 2024 ought to be struck out for want of service upon the 2nd and 5th respondents, and Peter Nyaga Njoka and Hellen Wanjiru Nyaga. 16.The application is hinged on Rule 84 of the repealed Court of Appeal Rules, 2010. As correctly submitted by the 1st respondent, the correct provision under which the application ought to have been brought is Rule 86 of the Court of Appeal Rules, 2022. That said, applying the oxygen rule under Article 159(2) (d) of the Constitution, which provides that justice is to be administered without undue regard to procedural technicalities, it is our view that failure to cite the correct provision of the law does not of itself render the application incompetent. Furthermore, Sections 3A and 3B of the Appellate Jurisdiction Act obligates the Court, while undertaking its mandate, to be guided by the overriding objective of facilitating just, expeditious, proportionate and affordable resolution of disputes. In this regard, it is clear that the wording of the prayers sought in the application is unambiguous. Further, the former Rule 84 under the 2010 Rules spelt out similar provisions, hence, it is clear to us that the applicants, despite stating a repealed provision, intended to seek one and the same prayer as is currently provided under Rule 86 of the 2022 Rules. 17.With the foregoing in mind, Rule 86 provides that:A person affected by an appeal may, at any time, either before or after the institution of the appeal, apply to the Court to strike out the notice or the appeal, as the case may be, on the ground-a.that no appeal lies; orb.that some essential step in the proceedings has not been taken or has not been taken within the prescribed time;Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days after the date of service of the notice of appeal or record of appeal, as the case may be. 18.The proviso to Rule 86 is couched in mandatory terms in that, an application seeking to strike out a notice of appeal or record of appeal is not to be brought outside 30 days after service. This Court in Joyce Bochere Nyamweya vs. Jemima Nyaboke Nyamweya & Another (2016) KECA 569 (KLR) held that it is bound by the mandatory nature of the then proviso to Rule 84 of the repealed 2010 Rules (now Rule 86) on such applications as follows:‘‘It is not at all in dispute that this application was filed outside the period of 30 days after the notices sought to be struck out were lodged and served. The above proviso is couched in mandatory terms and we have no discretion to second guess what was intended by the framers of the Rules when they gave a time frame.’’ 19.Similarly, in William Mwangi Nguruki vs. Barclays Bank of Kenya Ltd (2014) KECA 648 (KLR), it was held that:‘‘The proviso to that Rule clearly stipulates that an application to strike out a Notice of Appeal, such as the application before us, shall not be brought after the expiry of thirty (30) days from the date of service of the Notice of Appeal.’’ 20.The applicants confirmed that they were served with the Notice of Appeal on 25th July 2024. The instant application should ideally then have been filed before 25th August 2024. Instead, it was filed on 23rd October 2024 outside the mandatory 30 days’ period. On this score, the application itself is incompetent. 21.Further, the applicants complain that the 2nd respondent was not served with the Notice of Appeal as per the email of 25th July 2024. However, they have done little to assist the Court in specifying the email address which was supposed to have been used to serve the 2nd respondent. We therefore cannot ascertain whether the 2nd respondent was served or not. In any event, the 1st respondent stated that it withdrew the appeal against the 2nd respondent. For that reason, any service upon it (the 2nd respondent) would have been superfluous. 22.The second complaint is that the 5th respondent, together with Peter Nyaga Njoka and Hellen Wanjiru Nyaga, were not also served with the Notice and Record of Appeal. However, the 1st respondent deposed that the 5th respondent was served with the Notice and Record of Appeal through the firm of Muturi, Gakuo & Kibara Advocates, and it exhibited an email confirming this fact. As to service upon Peter Nyaga Njoka and Hellen Wanjiru Nyaga, the fact is that the suit against them was struck out through the impugned ruling that is subject of the intended appeal. We do not therefore see how their participation in the appeal assists the applicants. 23.It is common ground that a party who is aggrieved by a decision decides which party to appeal against. The applicants did not appeal against the impugned ruling since they were not aggrieved by it. They have been brought to court by the appellants, who are the aggrieved parties. As such, the applicants cannot plausibly make the decision against whom the appeal is to be filed and served upon. Simply said, they lacked locus standi on this front. Conversely, it is the party who has been left out in the appeal who ought to complain on the lack of inclusion and service of the appeal. 24.Finally, the impugned ruling was delivered on 24th July 2024. The Notice of Appeal is dated 25th July 2024. Rule 79(1) provides that service of a notice of appeal should be effected within 7 days of lodging it. There is no dispute that the Notice of Appeal was served via email to the parties on 25th July 2024. The Record of Appeal was similarly filed within 60 days of the Notice of Appeal being lodged as per Rule 64(1) of this Court’s Rules, 2022 and, accordingly, served upon all the parties. 25.In the circumstances, we find that the Notice of Motion dated 23rd October 2024 is incompetent for the reason of being filed outside the stipulated timelines pursuant to Rule 86. That is, having been filed on 23rd October 2024 instead of earlier than 25th August 2024. Consequently, the same is hereby dismissed with costs to the 1st, 3rd to 5th respondents. DATED AND DELIVERED AT MOMBASA THIS 31ST DAY OF JULY, 2026.A. K. MURGOR…………………............…..JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.…………………............…..JUDGE OF APPEALG. W. NGENYE-MACHARIA…………………............…..JUDGE OF APPEALI certify that this is the true copy of the originalsigned DEPUTY REGISTRAR