https://new.kenyalaw.org/akn/ke/judgment/keca/2026/977

Kutima Investment Limited v Kihara & another Mining Company Limited & 5 others (Civil Application E260 of 2020) [2026] KECA 977 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 977 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E260 of 2020 WK Korir, S Radido & P Lilan, JJA May 15, 2026 Between Kutima Investment Limited Applicant and Muthoni Kihara & Muthoni Kihara Mining Company Limited 1st Respondent Cabinet Secretary, Ministry of Petroleum and Mining 2nd Respondent Director of Mines, Ministry of Petroleum and Mining 3rd Respondent Chairperson & Members, Mineral Rights Board 4th Respondent Attorney General 5th Respondent Mwairimba Mining Company Ltd ….......... 5Th Respondent Attorney General 6th Respondent (Being an application to strike out the Notice of Appeal dated 30th October 2019 in an appeal from the judgment and decree of the Environment and Land Court of Kenya at Mombasa (Yano, J.) dated 22nd October 2019 in ELC JR No. 2 of 2019) Ruling 1.Before this Court is a Notice of Motion dated 29th July 2020 brought under rules 75, 77, 82, 83 and 84 of the Court of Appeal Rules, 2010 seeking in the main to strike out the appellant’s notice of appeal dated 30th October 2019 and lodged in this Court on 6th November 2019. 2.Mr. Victor Odhiambo Adundo, learned counsel for the applicant swore an affidavit in support of the application. He states that after the suit, to wit, Mombasa ELC JR No. 2 of 2019, giving rise to the intended appeal was dismissed with costs on 22nd October 2019, the appellant (the 1st respondent herein) subsequently filed and served a notice of appeal dated 30th October 2019 and requested for typed proceedings by a letter of even date which was served on 12th November 2019. He avers that despite taking these initial crucial steps, the appellant did not institute or prosecute the intended appeal within the timelines prescribed under the Rules of this Court. 3.It is the applicant’s case that the delay spanning more than eight months is the situation contemplated by rule 83 of the Court of Appeal Rules, 2010 (now rule 85 of the Court of Appeal Rules, 2022) urging therefore that the notice of appeal dated 30th October 2019 be deemed to have been withdrawn. It is further averred that there being no step to perfect and/ or prosecute the intended appeal, the situation obtaining is contrary to the rules of this Court and in effect amounts to abuse of the process of this Court. 4.The applicant further contends that it is prejudiced having incurred expenses including the costs of retaining the firm of M/S Rachuonyo & Rachuonyo Advocates who have since filed a Notice of Address for Service and the present application. 5.The applicant therefore urges this Court to find that there has been inordinate delay on the part of the appellant for which no reasonable or excusable justification has been provided. The applicant, in addition, would like this Court to find that the delay has not only been prejudicial to the applicant but that relief sought ought to issue as a matter of justice. 6.On the part of the 1st respondent (intended appellant), a replying affidavit sworn by Mr. Edwin Musyoka, learned counsel for the 1st respondent is on record. He confirms that the 1st respondent lodged a notice of appeal dated 30th October 2019 on 6th November 2019, and also requested for typed proceedings by a letter of even date. While acknowledging delay in taking necessary subsequent steps, he explains that it is not for want of effort on the part of the 1st respondent but it is due to delay by the superior court in preparing typed proceedings which are yet to be provided to date. 7.The 1st respondent therefore avers that it still has a window under the rules of this Court in such circumstances since excusable delay in filing an appeal may be regularized either through a certificate of delay or by seeking extension of time from this Court. 8.The 1st respondent further avers that the present application is premature, made in bad faith, frivolous, and amounts to an abuse of the Court process. It is asserted that the existence of a valid notice of appeal should not be defeated by what is termed a technicality as this would unjustly deny the 1st respondent the right of appeal and run contrary to the principles of natural justice and the right to a fair hearing. 9.It is also averred that no prejudice will be suffered by the applicant if the notice of appeal is not struck out as the applicant will still have an opportunity to be heard in the intended appeal once it is filed. 10.In conclusion, the 1st respondent contends that in the interest of justice and the overriding objective of fairness, this application ought to be dismissed with costs. 11.At the hearing hereof, learned counsel Mr. Musyoka was present for the 1st respondent. There was no attendance on the part of the applicant and the other respondents despite having been served with the hearing notice. In light of that absence, counsel for the 1st respondent elected not to make any oral arguments and instead relied on the written submissions on record. 12.While responding to a question from the Court, counsel confirmed that the substantive appeal has not yet been filed stating that although proceedings were duly requested and handwritten copies are available, typed proceedings have not been prepared by the trial court. 13.On the issue of the death of Muthoni Kihara, counsel acknowledged her demise and conceded that the appeal had abated as against her. He however maintained that the proceedings remain alive as against Muthoni Kihara Mining Company Limited, a separate legal entity which continues to be represented in the matter. 14.In the written submissions dated 24th June 2022, the applicant reiterates that although a notice of appeal was filed, no steps have since been taken to institute or prosecute the appeal including filing a memorandum or record of appeal within the prescribed timelines or following up on the proceedings. 15.The applicant contends that this prolonged and unexplained inaction renders the notice of appeal liable to be deemed withdrawn or struck out under the Rules of the Court. Reliance is placed on John Mutai Mwangi & 26 others v Mwenja Ngure & 4 others [2016] eKLR, where this Court described the deeming provisions as a case management tool to clear dormant notices of appeal not followed by a record of appeal and cautioned against lodging notices without a genuine intention to pursue an appeal. Further reliance is placed on Kericho Technical Institute v Finmax Community Based Group & 3 Others [2016] eKLR, which affirms that failure to take essential steps within the prescribed timelines renders a notice of appeal incompetent and liable to be struck out. 16.It is therefore submitted that the intended appellant’s prolonged inaction demonstrates a lack of intention to pursue the appeal and amounts to an abuse of the court process as it serves only to prolong litigation and deny the applicant the benefit of the judgment. This position is further compounded by the fact that Muthoni Kihara, the 1st appellant, died on 4th December 2020 after the lodging of the notice of appeal and no substitution of her estate has been effected to date. As a result, the notice of appeal is rendered otiose, the appeal having abated by operation of law. This Court is thus urged to find that the notice of appeal has lapsed or is otherwise incompetent and to strike it out with costs. 17.On its part, the 1st respondent vide written submissions dated 24th September 2024 contends that the notice of appeal was properly lodged and served in compliance with rules 75 and 77 of the Court of Appeal Rules, 2010 (now rules 77 and 79 respectively) having been filed within 14 days of the impugned judgment and served within the prescribed time. The 1st respondent further asserts that the delay in instituting the appeal is attributable to the failure by the trial court to supply typed proceedings despite a timely request, and that in such circumstances, the delay is excusable and may be regularized through a certificate of delay or an application for extension of time. 18.The 1st respondent further contends that the application to strike out the notice of appeal is itself incompetent for having been filed out of time. Reliance is placed on African Service Maintenance Limited v Comarco Supply Base (EPZ) Limited & another [2022] KECA 613 (KLR), where this Court reaffirmed that timelines governing appellate steps are mandatory and that an application to strike out a notice of appeal must be filed within 30 days of service, failing which it is fatally defective. 19.On the merits, it is submitted that the notice of appeal cannot be deemed withdrawn under rule 83 (now rule 85), as the delay in filing the appeal is explained and justified. It is argued that the deeming provision should not be applied mechanistically where an appellant has taken steps such as requesting for proceedings and is still within the process of perfecting the appeal. The 1st respondent urges this Court to adopt a substantive justice approach and avoid shutting out a litigant from the right of appeal on what is characterized as a technicality. 20.The 1st respondent also challenges the applicant’s claim of prejudice contending that no sufficient prejudice has been demonstrated particularly as no stay orders have been sought or obtained to prevent the applicant from enjoying the fruits of the judgment. 21.Finally, the 1st respondent contests the applicant’s reliance on the death of the 1st appellant, contending that the issue of abatement and substitution was not pleaded in the supporting affidavit and cannot properly be introduced at the submissions stage. In the premises, the 1st respondent maintains that the application is incompetent, devoid of merit, and an abuse of the court process, and accordingly urges this Court to dismiss it with costs. 22.We have considered the application, the affidavits, the rival submissions and the law. The applicant invites this Court to determine whether the notice of appeal dated 30th October 2019 and lodged on 6th November 2019 ought to be struck out for failure to comply with the mandatory timelines governing the institution and prosecution of appeals under the Rules of this Court. 23.There is no dispute on the material factual position. The notice of appeal was duly lodged and served. It is equally not contested that, to date, no record of appeal has been filed. Indeed, learned counsel for the 1st respondent candidly confirmed during the hearing that the substantive appeal has not been instituted, attributing the delay to the unavailability of typed proceedings. On the face of it, therefore, the factual basis for invoking rule 83 of the Court of Appeal Rules, 2010 (now rule 85) is established. 24.This Court has previously explained the purpose and effect of that provision. In John Mutai Mwangi & 26 others v Mwenje Ngure & 4 others (supra), this 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.” 25.Similarly, in Kericho Technical Institute v Finmax Community Based Group & 3 others (supra), 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 circumstances of this case, the prolonged and unexplained inaction on the part of the 1st respondent would ordinarily justify the Court’s intervention under those provisions. 26.However, the 1st respondent raises a preliminary issue which, in our view, goes to the competence of the present application. It is contended that the application was brought outside the timelines prescribed under rule 84 of the Court of Appeal Rules, 2010 (now rule 86) which provides 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 record shows that the notice of appeal was served sometime in November 2019, whereas the present application was filed on 29th July 2020. There is no indication on the record that the applicant sought or obtained leave to extend time prior to filing the application. 27.The jurisprudence of this Court on that issue is settled. In African Service Maintenance Limited v Comarco Supply Base (EPZ) Limited & another (supra), this Court reaffirmed that compliance with the timelines under rule 84 is mandatory and that an application brought outside the prescribed period, without leave, is incompetent. That position accords with earlier decisions of this Court including Salama Beach Hotel Limited & 4 others vs Kenyariri & Associated Advocates & 4 others [2016] eKLR, Joyce Bochere Nyamweya v Jemima Nyaboke Nyamweya & another [2016] eKLR and William Mwangi Nguruki v Barclays Bank of Kenya Ltd [2014] eKLR, where this Court emphasized that timelines governing appellate procedure are substantive and go to the jurisdiction of the Court. 28.Bearing in mind the foregoing, we note that the said issue of delay in bringing the application was not raised in the replying affidavit but was introduced in the written submissions. While it is settled that parties are bound by their pleadings and that submissions cannot take the place of evidence, we are nonetheless satisfied that compliance with rule 84 raises a pure point of law discernible from the record itself. It turns on undisputed dates, namely, the date of service of the notice of appeal and the date of filing of the present application. As such, it does not depend on contested facts and goes to the jurisdiction of the Court and may therefore be properly considered notwithstanding the stage at which it was raised. 29.In the circumstances, and notwithstanding what appears to be a merited complaint by the applicant regarding the prolonged inactivity on the part of the 1st respondent, this Court is constrained to find that the application before it (being specifically an application for striking out the notice of appeal, and not one for deeming the notice of appeal as withdrawn) is incompetent for having been brought outside the timelines prescribed under rule 84 (now rule 86) and without leave. On that ground alone, the application cannot be sustained. Additionally, and as correctly submitted by counsel for the 1st respondent, the proviso to rule 82 (now rule 84(1)) provides succor to an appellant who seeks a copy of proceedings from the court appealed from within 30 days from the date of the delivery of the decision intended to be appealed. The 1st respondent having requested for a copy of the proceedings, and copied the request to the applicant, cannot therefore be accused of having failed to take an essential step. 30.In the end, the Notice of Motion dated 29th July 2020 is incompetent and is hereby struck out. The 1st respondent shall have the costs of the application from the applicant. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY, 2026.W. KORIR………………………JUDGE OF APPEALSTEPHEN RADIDO………………………………JUDGE OF APPEALPAUL LILAN…………………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.