https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1339

Mumias Sugar Company v Tom Ojienda & Associates (Civil Appeal (Application) E304 of 2021) [2026] KECA 1339 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1339 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E304 of 2021 GV Odunga, HI Ong'udi & B Ongaya, JJA July 10, 2026 Between Mumias Sugar Company Appellant and Prof.Tom Ojienda & Associates Respondent (Being an application to strike out the appeal against the Ruling and order of the High Court Nairobi (D.S. Majanja, J) delivered on 24th February 2021 in Nairobi HC. COMM. MISC. No. 299 of 2017 Miscellaneous Civil Application 299 of 2017 ) Ruling 1.The respondent/applicant herein has moved this Court through the Notice of Motion dated 21st June 2021 pursuant to Section 3 (1) of the Appellate Jurisdiction Act, Rules 82(1), 83 and 84 of the Court of Appeal Rules. The respondent/applicant seeks to have the Notice of Appeal dated 24th February 2021 deemed to have been withdrawn and the Record of Appeal dated 8th June 2021 struck out with costs. 2.The application is premised on the grounds on its face plus the affidavit by the respondent/applicant’s managing director sworn on the same date. He deponed that the record of appeal dated 8th June 2021 was fundamentally incurable and fatally defective, bad in law, an abuse of the court process and as such ought to be struck out with costs. He further deponed that the appellant/respondent being aggrieved by the decision of Hon. Justice D.S. Majanja delivered on 24th February 2021, proceeded to file a Notice of Appeal on the same date and later on 8th June 2021 filed a Record of Appeal. 3.According to him, the respondent contravened the salient provisions of Rules 82(1) and 83 of the Court of Appeal since the Record of Appeal was filed after 104 days which is outside the 60 days provided by the Rules. He added that no valid explanation as to the delay was given and no certificate of delay was attached. Thus, the omission made the Record of Appeal defective and incompetent in structure. 4.The appellant/respondent opposed the application through its replying affidavit sworn by its Legal and Administrative Officer, Patrick Mutuli, on 28th March 2026. He averred that after the ruling by Hon. D.S. Majanja J was delivered on 24th February, 2021, the appellant/respondent filed a Notice of Appeal and formally requested for certified typed proceedings and a copy of the ruling. However, despite this prompt action, it did not receive the certified copies until 5th May, 2021. He added that the certificate of delay issued by the Deputy Registrar of the High Court confirmed that the preparation and delivery of the documents took 72 days, spanning from 24th February 2021 to 6th May, 2021. 5.He further averred that the appellant/respondent exercised due diligence in seeking the necessary documents for the appeal. He maintained that the mandatory 60-day timeline for filing a Record of Appeal should either begin upon the receipt of these certified proceedings or that the 72-day preparation period should be excluded from the time computation. Thus, the filing deadline would have been 4th July 2021, making their actual filing on 8th June, 2021, timely. He further attested that the respondent/applicant had unfairly chosen to ignore the certificate of delay in their application. He added that the appeal raises triable issues that warrant the court's intervention. He urged the court to consider the case on its merits rather than dismissing it due to technical timing disputes. 6.When the application came up for hearing on 25th February 2026, learned counsel Miss Musando holding brief for Professor Ojienda appeared for the respondent/applicant while learned counsel Mr. Masafu represented the appellant/respondent. They both made brief oral highlights of their written submissions in plenary. 7.In the submissions dated 21st June 2021, learned counsel for the respondent/applicant submitted that under Rule 82(1) of the Court of Appeal Rules, 2010, a Record of Appeal must be filed within 60 days of the Notice of Appeal and failure to meet this deadline deemed the Notice of Appeal as withdrawn. He stated that the appellant/respondent filed their Record 104 days after the Notice, thereby violating Rule 83 of the Rules and divesting the Court of jurisdiction to hear the matter. 8.He placed reliance on the decision in Patrick Kiruja Kithinji v Victor Mugira Marete [2015] eKLR, where this Court affirmed that strict timelines for lodging an appeal are what confer jurisdiction upon the Court. Additionally, he cited the decision in Felister Wakonyo Wamahiu v Joseph Wachira Mwangi [2014] eKLR where this Court held that filing an appeal out of time without the court's leave is not a curable defect under Article 159 of the Constitution. Counsel also made reference to the landmark case of Owners of Motor Vessel "Lilian S" -Vs- Caltex Oil (K) Ltd 1989 KLR 1 (CAK); [1989] eKLR and submitted that jurisdiction is everything, and without it, a court must down tools as it has no power to take further action. 9.Counsel asserted that the overriding objective of the Court cannot be invoked to save an incompetent appeal. He argued that the Record of Appeal is substantively incomplete, violating Rule 87(1) of the Rules. He stated that the record lacks certified copies of necessary documents and a certificate of delay to explain the late filing. Relying on the Supreme Court decision in Bwana Mohamed Bwana vs Silvano Boru Bonaya & 2 Others SC Petition No. 15 of [2015] (UR), he argued that an incomplete bundle of documents renders the appeal defective and incompetent. Consequently, the respondent/applicant urged the Court to strike out the record pursuant to Rule 84 and Section 3(1) of the Appellate Jurisdiction Act. 10.In the submissions dated 1st April 2025, learned counsel for the appellant/respondent submitted that indeed the appeal was filed 104 days after the Notice of Appeal, exceeding the 60-day limit prescribed by the Rules. However, he added that the appeal was filed within 34 days after consideration of the time spent on record preparation. He placed reliance on the proviso to Rule 82(2) of the Court of Appeal Rules, 2010 (now Rule 84(2) of the Court of Appeal Rules, 2022). 11.Counsel further submitted that the said Rule allows for the exclusion of time required by the High Court to prepare and deliver certified copies of proceedings. That in this instance, the appellant applied for and paid for the proceedings on 24th February 2021, the very same day the ruling was delivered. Thereafter, a Certificate of Delay was issued by the Deputy Registrar certifying that 72 days (from 24th February to 6th May 2021) were required to prepare the typed proceedings 12.Learned counsel cited the decision in Ali v Grain Industries Limited Civil Application E066 of 2023 KECA 400 (KLR), where this Court reaffirmed that while an appeal must generally be filed within 60 days, the period certified by the registrar as necessary for the preparation of proceedings must be excluded from this computation. Similarly, in Subcounty Cooperative Officer, Turbo & Soy v Ralphwoods (K) Limited & 2 Others (Civil Appeal 81 of 2020) KECA 303 (KLR), this court held that a party who has properly obtained a certificate of delay is entitled to rely on the proviso to the Rules, and such period cannot be used to argue that an appeal was filed out of time. 13.In conclusion, learned counsel for the appellant/respondent argued that because the 72-day delay caused by the court is excluded by law and then the time taken to file the appeal started running on 7th May 2021. It was therefore his submission that the appeal was filed within time. He urged the court to dismiss the application with costs 14.We have read and carefully considered the application, the submissions and the law. This application seeks to have the Notice of Appeal dated 24th February 2021 deemed to have been withdrawn and the Record of Appeal dated 8th June 2021 struck out. 15.Counsel for the respondent/applicant took issue with the filing of the Record of Appeal, that is 104 days after filing of the Notice of Appeal. He asserted that the said days exceeded the 60-day limit prescribed by the Rules and failure to meet this deadline rendered the Notice of Appeal as withdrawn. He added that the appellant/respondent’s actions violated Rule 83 of the Rules and therefore this Court lacked jurisdiction to hear the matter. 16.On his part, learned counsel for the appellant/respondent argued that the appeal was filed within 34 days once the time required to prepare the court proceedings is properly excluded. He placed reliance on the proviso to Rule 82(2) of the Rules, 2010 (now Rule 84(2) of the Rules, 2022). 17.The timelines for filing appeals in this Court are mandatory and not merely directory. This principle was upheld in Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, where the Supreme Court held as follows:“There must be strict compliance with the rules of the Court regarding the steps taken in lodging an appeal.” 18.Further, Rule 84 (1) and (2) of the Court of Appeal Rules, 2022 clearly sets out the procedure of filing an appeal. Rule 84 (2) is clear that a copy of the request for proceedings must be served on the respondent for one to rely on the provisio under Rule 84 (1). 19.The proviso to the said rule clearly indicates that the excluded period is 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/respondent of such copy of the proceedings. In the present case the Notice of Appeal was filed on 24th February 2021, that is the same date when the ruling by the High Court was delivered. The 60 days prescribed under Rule 84(1), for instituting an appeal can only start running after a Notice of Appeal has been lodged. However, the proviso to the said Rule stipulates that where a party has made an application for a copy of the proceedings within 30 days of a decision, and copied that application to the other side, the time taken to prepare and deliver those proceedings would be excluded when computing the appeal deadline. 20.In the instant case, the appellant/respondent applied for a copy of the proceedings on 24th February 2021 and the respondent/applicant copied. On 29th July, 2021 the Deputy Registrar of the High Court issued a certificate to the effect that the time taken to type, proof read and certify the proceedings was from 24th February, 2021 to 6th May, 2021, a total of 72 days. It is not disputed that on 4th May 2021, parties were informed that the proceedings were ready and counsel for the appellant/respondent informed the Court that they collected the said proceedings on 5th May 2021. 21.In our view, the only period to be taken into account for the purposes of filing of the Record of Appeal herein is the period after 5th May, 2021 when the proceedings were collected. We opine that the period to be excluded not only includes the period required to type the proceedings but also includes the time when the proceedings were delivered or when the parties were notified that the same were ready. This position was affirmed by this Court in Ndirangu & 3 Others v Isosho (Civil Application E038 of 2021) [2023] KECA 433 (KLR) as follows;“It therefore follows that in computing time for the purposes of filing of the Record of Appeal, the only period to be taken into account is the period after January 16, 2020 when the proceedings were collected and not October 25, 2019 when the proceedings were ready. This must be so since the period to be excluded not only includes the period required to type the proceedings but also the time when the proceedings were delivered or when the party applying for the same was notified that they were ready for delivery. In this case, the Applicants have not contended that they were not served with the letter requesting for the proceedings as required under Rule 84(2) so as to deny the Respondents the benefit of the proviso to Rule 84(1) of the Rules of this Court. On the face of it, the letter requesting for a copy of the proceedings was copied to the Applicant’s advocates.” (Emphasis added) 22.In view of the foregoing, we find that the appeal which was filed on 8th June, 2020 that is approximately 34 days after collection of the proceedings, was instituted within time. Similarly, in this matter the respondent/applicant did not contend that it was not served with the letter requesting for the proceedings. In addition, the letter requesting for a copy of the proceedings shows that it was copied to the respondent/applicant’s advocates. 23.Before we conclude the matter we wish to clarify that an application seeking to have an appeal deemed as withdrawn cannot, strictly speaking, be made after an appeal has been filed. Once an appeal is filed, the proper thing to do, if one believes that it is incompetent, is to seek to have it struck out. This is because rule 85 (the deeming provision) only deals with the Notice of Appeal and not the Record of Appeal. 24.Consequently, it is our finding that the Notice of Motion dated 21st June 2021 lacks merit and the same is dismissed with costs to the appellant/respondent. 25.Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026.G.V. ODUNGA...............................JUDGE OF APPEALH.I. ONG’UDI...............................JUDGE OF APPEALB. ONGAYA...............................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.