https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1040

Kenya Power & Lighting Co Ltd v Mwanthi (Civil Appeal (Application) E674 of 2021) [2026] KECA 1040 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1040 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E674 of 2021 PO Kiage, RB Ngetich & S Radido, JJA May 29, 2026 Between Kenya Power & Lighting Co. Ltd Appellant and Joseph Nzyoki Mwanthi Respondent (An application to strike out the Appeal against the Judgment of the High Court of Kenya at Nairobi (Ong’injo, J.) dated 21st January, 2020 in HCCA No. 257 of 2011) Ruling 1.By the motion dated 10th May 2022, brought under rules 42, 82 and 84 of the former Court of Appeal Rules, and sections 3A and 3B of the Appellate Jurisdiction Act, the respondent seeks to strike out the appellant’s record of appeal. He also prays that the sum of Ksh. 962,000 deposited in court as a condition for grant of an order of stay of execution be applied directly toward satisfaction of the decree in HCCA No. 257 of 2011, by releasing the amount to him or his advocates on record, Ms. Kang’ethe Waitere & Co. Advocates. 2.The motion is predicated on grounds on the face of it and the respondent’s supporting affidavit dated 10th May 2022. The grounds are that, the respondent filed suit before the subordinate court being Nairobi CMCC No. 4676 of 2010 (Joseph Nzyoki Mwanthi vs. The Kenya Power Company Lighting Ltd); on 6th June 2011, the court delivered judgment in the suit; the appellant was aggrieved by the judgment and therefore preferred an appeal before the High Court being Nairobi HCCA No. 257 of 2011; on 21st January 2020, the High Court delivered judgment in the appeal which equally aggrieved the appellant causing it to appeal to the Court of Appeal; on 27th January 2020, the appellant requested for typed proceedings which it was notified were ready for collection on 2nd July 2020. 3.The respondent averred that pursuant to rule 82 (now rule 84 of the Court's Rules, the appellant was obligated to institute its appeal within 60 days from the date when the proceedings were ready that is, on or before 2nd September 2020. The appellant, however, filed the record of appeal on 22nd November 2021, more than one year after the lapse of the statutory timeline. It was asserted that the appellant did not obtain leave before filing the record of appeal out of time and hence the appeal was incompetent. Moreover, the respondent had been prevented from enjoying the fruits of the impugned judgment since the year 2011 when the judgment of the trial court was delivered, because of the pendency of the appeal and the orders of stay of execution of the decree. The respondent deposed that he had been granted leave by this court to file the instant application out of time. 4.In response and opposition to the motion, Irene Walala Adhiambo, the appellant’s Legal Officer, swore an affidavit on 19th March 2026 in which she confirmed that the impugned judgment was delivered on 21st January 2020; the appellant made an application for copies of the proceedings on 27th January 2020 and was informed of their readiness on 2nd July 2020. It paid the attendant court fees on 15th July 2020, and collected certified copies of the proceedings on 6th August 2021. Ms. Adhiambo averred that the appellant filed the record of appeal dated 17th November 2021 and served it on the respondent on 25th November 2021. She contended that the respondent had not exhibited the prejudice that he would suffer if the appeal was heard and determined on its merits as opposed to having it struck out on procedural technicalities. The respondent was accused of being equally at fault as demonstrated by the ruling dated 28th April 2022, which allowed him to file the instant application out of time. Citing the overriding objectives of the court under sections 3A and 3B of the Appellate Jurisdiction Act, the appellant argued that the application herein does not attain those objectives. In the end, we were urged to dismiss the application and allow parties to expeditiously canvas the main appeal on its merits. 5.At the hearing of the motion, learned counsel Mr. Mwanthi, holding brief for Ms. Kangethe, appeared for the respondent while his learned counterpart, Mr. Akatch, appeared for the appellant. Mr. Mwanthi chose to rely entirely on his filed written submissions and bundle of authorities while Mr. Akatch briefly highlighted his. 6.By way of submissions drawn and filed on behalf of the respondent by Kang’ethe, Waitere & Co. Advocates, it is urged that the averments in the respondent’s supporting affidavit were uncontroverted. Counsel reiterates that the appellant instituted the appeal outside the 60 days period stipulated under rule 84 of the Court of Appeal Rules, 2022. It is submitted that the 13 days delay by the appellant before paying the requisite court fees on 15th July 2020, and a further delay of one year and 21 days before collecting the proceedings on 6th August 2021, remained unexplained. Moreover, after collecting the proceedings, the appellant delayed for another 106 days before filing the record of appeal on 22nd November 2021. Counsel submits that in view of the fact that the 14 months delay before filing the record of appeal was not only inordinate but unexplained, this court should not exercise its discretion in favour of the appellant. 7.Counsel points out that even after the appellant was served with the instant application, it did not bother to move the court for appropriate relief under rule 4 of this Court’s Rules. It is urged that filing a record of appeal is an essential step within the meaning of rule 86 of the Court’s Rules, which ought to have been taken within the prescribed time and failure to do so should invite the court to strike out the record. To underscore that submission, this court’s decision in Embakasi Youth Development Project v Housing Finance Company of Kenya Ltd (2008) KECA 176 (KLR) is relied on. Counsel further refers to Kiage, JA’s dissenting opinion in Nicholas Kiptoo Arap Korir Salat v Independent Electoral And Boundaries Commission and 6 Others (2013) KECA 113 (KLR), where the learned Judge while relying on various authorities of this court in answering the question, whether in the face of an application to strike out an appeal for non- compliance with mandatory procedural rules, the court could in the absence of a plausible explanation by the party in default turn a blind eye and excuse the default, observed that courts cannot aid in the bending or circumventing of rules. 8.On whether the respondent would suffer prejudice if the instant application is declined, it is submitted that the respondent was gravely prejudiced by the appellant’s action of lodging the appeal after an inordinately unexplained period to the extent that he was kept away from enjoying the benefits of the impugned judgment. Counsel contends that the appellant has not objected to the prayer for the sum of Ksh. 962,000 deposited in court as a condition for grant of an order of stay, being applied towards satisfaction of the decree in HCCA No. 257 of 2011. In conclusion, we are invited to find the instant application meritorious and award the respondent costs. 9.In opposition to the appeal, Mr. Akatch cited sections 3A and 3B of the Appellate Jurisdiction Act and article 159(2)(d) of the Constitution and asserted that the primary business of the court is determination of appeals. Counsel contended that the court’s power to strike out a notice of appeal or an appeal pursuant to rule 86, is discretionary. Moreover, that the use of the word ‘may’ as opposed to ‘shall’, in the provision, suggests that an infringement of rule 84 does not automatically preclude a party from having his matter heard and determined. In support of this submission, the majority decision in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 6 Others (supra) was cited. 10.Mr. Akatch argued that the respondent would suffer no prejudice if the appeal was heard and determined on its merits. He contended that both parties had been mutually guilty of laches, the respondent having sought leave to file the present application out of time and the court having indulged him. In the end, counsel urged us to dismiss the application with costs. 11.In view of the fact that the instant motion, which pointed out that there was a defect with the appeal, was filed some years back in the year 2022, we enquired of Mr. Akatch what action the appellant took during the intervening period, to rectify the error. Counsel’s initial response was that he was under the impression that one cannot apply to regularise an already filed appeal. We, however, drew his attention to rule 4 of the Rules which allows one to apply for extension of time, upon which he conceded that the appellant had not taken any action to validate the error. We further probed counsel why they did not find it prudent to regularise the appeal when the respondent made an application for extension of time to file the motion herein, which application was granted by Laibuta, JA. In answer, counsel insisted that we should consider the application in light of the majority decision in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 6 others (supra). 12.We have carefully considered the application before us, the rival affidavits and submissions, the Rules of this Court and the law. The central issue in the instant application is the effect of the appellant’s failure to comply with rule 84(1) of the Court’s Rules which provides that“… 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; andd.security for the costs of the appeal.” 13.Where there is default in taking an essential step in the proceedings, a person affected by an appeal may apply under rule 86 of the Rules to strike out the notice or the appeal itself, if already instituted. It is under this rule that the respondent/applicant has moved us, asserting, which is common ground, that the appellant failed to take the essential step of lodging the record of appeal within the time prescribed. 14.The rule itself has a proviso that an application to strike out a notice of appeal or an appeal “shall not be brought after the expiry of thirty days from the date of service of the notice of appeal or record of appeal as the case may be.” The applicant has demonstrated that by a ruling dated 28th April 2022, Laibuta, JA allowed him to file the instant appeal out of time. 15.The appellant does not dispute that he filed the record of appeal out of time. He instead urges us to consider the application in light of the overriding objective of the court, as prescribed under sections 3A and 3B of the Appellate Jurisdiction Act, to facilitate the just, expeditious and proportionate resolution of appeals. The appellant also implores us to be guided by article 159(2)(d) of the Constitution and the majority decision in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 6 others (supra). 16.While we are aware of our duty to be guided by a broad sense of justice and fairness in handling matters that come before us, as decreed by the overriding objective principle and the Constitution, in this matter the appellant has not demonstrated that it is deserving of our solicitude. During the hearing, counsel could not explain why the appellant failed to take any action to rectify the error with the record, when the application herein came to its attention in the year 2022. Nor could he explain why no steps were taken to validate the record even after the respondent lodged an application for extension so that he could pursue the instant application. In the least, no explanation was offered to justify the delay of about 14 months before lodgement of the record of appeal although, properly understood an explanation, if any should be made to a single Judge on a rule 4 application, not on a striking out one, such as we are dealing with. In the circumstances, would restate what Kiage, JA (in the minority) stated in Nicholas Kiptoo Arap Korir Salat Independent Electoral And Boundaries Commission and 6 others (supra)’“I am not in the least persuaded that article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost- effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This court, indeed all courts, must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned. […]I am fully convinced that, on the authorities, this court has been quite consistent on the validity, utility and binding force of the Rules. It has never been the practice that sympathy with an appellant on account of the importance of the subject matter of an appeal would, of and in itself, save an incompetent appeal. I would take the view, rather, that the greater the importance of a particular appeal, the more the care and scrupulous attention an appellant should take to ensure compliance with the Rules. This court must be seen to maintain that consistency.” 17.The Supreme Court echoed Kiage, JA’s sentiments on the binding nature of the Rules of the Court in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) as follows;“52.What we hear the applicant telling the court is that he is acknowledging having filed a ‘document’ he calls ‘an appeal’ out of time without leave of the court. Pursuant to rule 33(1) of the Court’s Rules, it is mandatory that an appeal can only be filed within 30 days of filing the notice of appeal. Under rule 53 of the Court’s Rules, this court can indeed extend time. However, it cannot be gainsaid that where the law provides for the time within which something ought to be done, if that time lapses, one need to first seek extension of that time before he can proceed to do that which the law requires.” 18.Ultimately, we do not find the appellant to have provided a sufficient answer to the striking out motion. We accordingly grant the same and strike out the record of appeal with costs as prayed. DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY, 2026.P. O. KIAGE.......................JUDGE OF APPEALR. NGETICH........................JUDGE OF APPEALRADIDO S. OKIYO..........................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR