https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1372

Kariuki (Suing on Behalf of the Estate of Eliud Kimari Muturi (Deceased)) v Keiza & another (Civil Appeal (Application) E273 of 2021) [2026] KECA 1372 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1372 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E273 of 2021 GV Odunga, HI Ong'udi & B Ongaya, JJA July 10, 2026 Between Loise Wambui Kariuki (Suing on Behalf of the Estate of Eliud Kimari Muturi (Deceased)) Appellant and Nathan Kagazi Keiza 1st Respondent Radiant Group of Hospitals Limited 2nd Respondent (An application to strike out the Memorandum and Record of Appeal filed on 21st June 2021 against the Judgment of the High Court at Milimani (L. Njuguna J.) dated 13th February, 2020 in HCC Suit No. 257 of 2013) Ruling 1.The applicants, Nathan Kagazi Keiza and Radiant Group of Hospitals Limited, (whom we shall refer to as the applicants) who are the respondents in the main appeal, have, by their Notice of Motion dated 21st July 2021, expressed to be brought under section 3A of the Appellate Jurisdiction Act and rule 84 of the Court of Appeal Rules, sought to have the Memorandum and Record of Appeal filed by Loise Wambui Kariuki, (whom we shall refer to as the respondent) on 2nd June 2021 struck out with costs. 2.According to the applicants, judgment from which the appeal arises was delivered by the trial court on 13th February 2020 and on 19th February 2020, the respondent lodged her Notice of Appeal. On 2nd June 2021, the respondent filed the Memorandum of Appeal together with the Record of Appeal. In the applicants’ view, there was a period of over 450 days between the lodging of the Notice of Appeal and the filing of the Memorandum and Record of Appeal contrary to rule 82 of the Rules of this Court which prescribes that an appeal be instituted within 60 days of the lodging of the Notice of Appeal. The applicants contended that the respondent did not account for the unreasonable delay. 3.As regards the Certificate of Delay incorporated in the Record of Appeal, it was contended that the same did not account for the unreasonable delay. The Certificate, it was noted, states that the appellant was informed that the proceedings were ready for collection on 2nd October 2020, but she sat on the information and collected the same on 16th February 2021, a period of over 120 days from the date of notification, a delay which is inordinate and is similarly unaccounted for. Even after collecting the proceedings on 16th February 2021, it was not until 2nd June 2021 that the Record of Appeal was filed, a further delay of over 100 days from the date of collection of the proceedings which is, once again, unaccounted for. 4.It was therefore asserted by the applicants that no appeal lies before this Court as both the Memorandum and Record of Appeal are invalid on account of being filed out of the prescribed time, hence the prayer to have them struck out with costs. 5.The response to the application was in form of a replying affidavit sworn by the respondent on 3rd August 2021 in which she averred that after filing Notice of Appeal on 24th February 2020, her advocates immediately applied for copies of judgment, typed proceedings and certified copy of the decree. That the said documents were availed by the court on 15th February 2020, 16th February 2021 and 4th May 2021 respectively. In her view, it would not have been possible or practical for her advocates to file Memorandum and Record of Appeal within 60 days of lodging the said Notice of Appeal in compliance with the Rules.Consequently, her advocates were furnished with the Certificate of Delay dated 26th April 2021 and they completed the filing of the Record of Appeal on 2nd June 2021. 6.We heard the Motion on 25th February 2026 when learned counsel, Mr Orenge, appeared for the applicants while learned counsel, Mr Kirika, appeared for the respondent. 7.Although written submissions were filed on behalf of the respondent opposing the application, during the plenary hearing, Mr Kirika, readily conceded that the appeal was filed out of time. He however, urged the Court to consider the fact that the events leading to the delay took place during the Covid 19 pandemic when most activities were grounded to a halt. He however contested the allegations by the applicants that they were not served with the letter requesting for proceedings, insisting that service of the said letter, which was acknowledged, was effected. Learned counsel took the view that no prejudice would be visited on the applicants that would justify the invocation of rule 84 of this Court’s Rules since there was compliance with the proviso to that rule which freezes time. Learned counsel cited Article 159 of the Constitution as the authority for the position that the Court should not rely on undue technicality in meting out justice. He appealed to the Court not to strike out the appeal but to let the same be heard on merits. 8.On his part, Mr Orenge submitted that in light of the concession, the application should be allowed as the omission goes to the jurisdiction of the Court as no leave was sought to appeal out of time. In his view, the reasons advanced for the failure to file the appeal within time are irrelevant and that the provisions of Article 159(2)(d) of the Constitution cannot cure the jurisdictional defect. It was his submission that on the face of the Certificate of Delay, the proceedings were ready on 16th February 2021 but the appeal was only filed on 22nd June 2021, some 126 days thereafter hence the proviso to rule 84 of this Court’s Rules would be of no assistance. 9.Rule 84(1) and (2) of the Rules provides that: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; andd.security for the 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 sub-rule (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 sub-rule (1) unless the appellant’s application for such copy was in writing and a copy of the application was served upon the respondent. 10.An appeal is, under the above rule, required to be filed within 60 days of lodging of the Notice of Appeal. A party who fails to do so can only validate the appeal by seeking leave of the Court by way of extension of time under rule 4 of the Rules. The only exception is where the intending appellant had, within thirty days after the date of the decision against which it is desired to appeal, applied in writing for a copy of the proceedings and copied the letter requesting for the proceedings to the intended respondent. In that event, in computing the time within which the appeal is to be instituted, the period certified by the registrar of the lower court as having been required for the preparation and delivery to the appellant of such copy, is to be excluded. Unless this is done, the appellant does not benefit from the period taken in preparation and delivery of the proceedings. 11.In this case, the Notice of Appeal having been lodged on 19th February 2020, the appellant/respondent was, unless time was deemed to have been frozen pursuant to the proviso to rule 84(1) of the Rules, required to file the appeal by 20th April 2020. Although the applicants contended that they were not served with the letter bespeaking proceedings, our attention was drawn to a copy of the letter dated 14th February 2020 addressed to the Deputy Registrar of the court below requesting for “certified copy of the typed proceedings”. Pausing here for a moment, under rule 84(2) of the Rules, the period to be excluded is the time certified as having been required for the preparation and delivery to the appellant of a copy of the proceedings. That rule does not talk about delivery of certified copy of the proceedings. That was the position in Rodgers Abisai v Wachira Waruru & Another [2009] eKLR where it was held by this Court that:“On 30th May, 2007 the respondents requested the Deputy Registrar of the superior court for “typed certified copies of the proceedings and judgment” none of which, we are informed from the bar, have been received to date. We would agree with Mr. Oguttu, learned counsel for the applicant, that certified copies of proceedings and judgment are not necessary documents for the purposes of an appeal. An intended appellant only requires uncertified copies of proceedings and judgment to facilitate the compiling of a record of appeal. These documents comparatively take a shorter time to obtain than certified ones. Thus, it is clear that the respondents had requested for wrong copies of proceedings and judgment. Mr. Oguttu submits that this omission is contrary to rule 81(1) of the Court of Appeal Rules and that the respondents having failed to comply with the said rule, then they had failed to lodge the record of appeal within the statutory duration and the grace period conferred by the said rule is not available to them due to the breach of the mandatory proviso to rule 81. We do not agree with that submission. The said rule is not breached by merely asking for certified copies of proceedings. It may be breached if the uncertified copies are available but the intending appellant does not use them insisting on being supplied with the certified ones. Again, it would appear that certified copies may be used to mount an appeal if they are supplied timeously.” [Emphasis ours]. 12.As will readily appear, nothing really turns on what the respondent applied for. We must however point out that although the applicants contended that they were not served with the letter bespeaking proceedings, the said letter on its face shows that it was copied to the applicants’ advocates and there appears on the letter a stamp bearing the name of the firm of the applicants’ advocates. We have no reason to believe otherwise. 13.It is however admitted by Mr Kirika that even if the Certificate of Delay was valid, the appeal was still filed out of time since it was not filed within 60 days of the intimation by the Deputy Registrar of the High Court that the proceedings were available for collection. It is therefore not contested that the Memorandum and Record of Appeal were filed out of time. Mr Kirika’s only plea was that the appeal ought to be saved on account of the circumstances prevailing during the Covid 19 pandemic and further that no prejudice would be occasioned to the applicants. 14.This Court, dealing with a similar application in Mae Properties Limited v Joseph Kibe & Another [2017] KECA 238 (KLR), held that:“We have said on numerous occasions that the Rules of Court exist for the purpose of orderly administration of justice before this Court. The timelines appointed for the doing of certain things and taking of certain steps are indispensable to the proper adjudication of the appeals that come before us. The Rules are expressed in clear and unambiguous terms and they command obedience.” 15.In Gituro v Maki & 3 Others (Civil Appeal (Application) E050 of 2023) [2024] KECA 1204 (KLR) (20 September 2024) (Ruling), the Court held that:“A notice of appeal filed out of time bereaves this Court of jurisdiction to entertain the appeal and must suffer only one fate: striking out.” 16.On whether Article 159(2)(d) of the Constitution offers solace to a party who fails to comply with the timelines prescribed by the Rules, this Court (Kiage, JA) in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR held that:“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.” 17.Therefore, where the Memorandum and Record of Appeal are filed out of time and without leave, the Court has no option but to strike them out. The reasons advanced by the respondents for non-compliance would have been relevant if she had applied for extension of time to file the appeal out of time. As no such application has been made, the present application is unassailable. It cannot be successfully resisted. 18.We grant the Notice of Motion dated 21st July 2021 and hereby strike out the respondent’s Memorandum and Record of Appeal filed on 2nd June 2021. It follows that the entire appeal is struck out, with costs to the applicants. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026.G. V. ODUNGA......................................JUDGE OF APPEALG. I. ONG’UDI......................................JUDGE OF APPEALB. ONGAYA......................................JUDGE OF APPEALI certify that this is the signed true copy of the originalDeputy Registrar