https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1652

Kihu v Housing Finance Company (K) Ltd & another (Civil Appeal (Application) E311 of 2025) [2026] KECA 1652 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1652 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E311 of 2025 SG Kairu, GV Odunga & BM Kairaria, JJA July 31, 2026 Between Mutua Kihu Applicant and Housing Finance Company (K) Ltd 1st Respondent Kennedy Ongunyi 2nd Respondent (An application to strike out an appeal from the Judgement and Decree of the Environment and Land Court at Nairobi {O. A. Angote J} delivered on 20th November, 2024 in ELC Case No. 176 of 2012) Ruling 1.On 4th March 2026 we heard two applications dated 15th May, 2025 and 29th July, 2025, filed by the 2nd Respondent and the Appellant respectively. We directed that the two applications be heard together with the rider that the Appellant’s application for stay of execution under Rule 5(2)(b)pending the hearing and determination of the appeal would be subject to our finding on the 2nd Respondent’s application, which is the first in time, and seeks that the appeal be struck out with costs to the Respondent; on grounds that:a.Essential steps in the proceedings have not been taken within the prescribed time;b.The appeal was filed outside the time prescribed under Rule 84 (1) of the Court of Appeal Rules and the Appellant had not sought and obtained extension of time under Rule 4.c.The Appellant has not attached a certified copy of the Decree as required by Rule 89(h) of the Rules of the Court; andd.The Record of Appeal was not served upon the Respondents within the time prescribed under Rule 92. 2.The factual basis of the application is set out in the affidavit of Kennedy Otieno Onguny [the Applicant] sworn on 15th May, 2025. Essentially the applicant asserts that;- the judgement appealed from was delivered on 20/11/2024; a notice of appeal and written request for typed proceedings dated 27th November 2024 were electronically served upon the Applicant’s Counsel on 03/12/24. The record of appeal in two volumes and a certificate of delay was served on 29th April, 2025. 3.The Applicant contends that the record of appeal was filed and served outside the 60 days after lodging the Notice of Appeal contrary to Rule 84(1) of the Rules and was not served before or within seven [7] days after lodging as required by Rule 92[1] and the Decree at page 612-614 of the Record of Appeal is not certified contrary to Rule 89(h). This the Applicant submits renders the entire appeal fatally defective and prays that the appeal be struck out with costs. 4.In addition to the supporting affidavit the applicant relied on written submissions dated 8th December, 2025 which were orally highlighted by Mr. K’Opere SC at the virtual hearing on 4th March, 2026. He submitted that the application is primarily premised on the ground that the Record of Appeal was filed 16 days out time and without extension being sought. He pointed out that the Record of Appeal dated 17th April, 2025 was filed on 24th April 2025 yet the certificate of delay dated 17th February, 2025 excluded a period of only 72 days from 27th November, 2024 to 7th February, 2025. That by virtue of that certificate of delay the Record ought to have been filed on 8th April, 2025 which is the 60th day after the date when the Deputy Registrar of the Environment and Land Court notified the Appellant that the proceedings were ready for collection. Counsel added that the amended certificate of delay dated 25th August, 2025 introduced through the supplementary record of appeal which purports to exclude 93 days instead of 72 days cannot cure the default. Lastly counsel submitted that the copy of the Decree at page 612 to 614 in the record is not a certified copy of the Decree as contemplated by Rule 89[h] of the Court of Appeals Rules. Consequently Counsel argued that these were fundamental flaws which render the present appeal incurably and fatally defective and ought to be struck out for being incompetent. 5.In response the Appellant denied that it filed the appeal out of time and prayed that the application be dismissed with costs. Mr. Kirimi Advocate who represented the Appellant on 4th March, 2026 relied on the Appellant’s replying affidavit sworn on 26th June, 2025 and written submissions dated 2nd March, 2026. He submitted that the appeal was indeed filed on time because while the Appellant’s previous counsel, the late Kyalo, was provided with typed proceedings on 7th February, 2025 as stated in the Certificate of delay filed in the record of appeal, a copy of the Decree was only availed on 28th February, 2025. He further submitted that whereas the certificate of delay shows that the proceedings were ready earlier than 28th February 2025, this is incorrect because the copy of the decree was not ready for collection before that date. It is for that reason, that the Appellant’s previous counsel sought and obtained an amended certificate of delay which has now been filed with the Court under Rule 94 and served it upon counsel for the Applicant. 6.The Appellant’s Counsel asserted that it was clear from the amended certificate of delay that the proper date when the proceedings, the Decree and everything was available for filing the record of appeal was 28th February 2025. He then submitted that 93 days ought to be excluded from the computation of time and once that exclusion is factored in, it would be clear that the appeal was filed in good time. Citing the dicta in the case of Tome & Another vs. Attorney General & 2 Others (Misc. Civil Appl. 185 of 2019) 2021 KECA 150 (KLR) counsel submitted that striking out of an appeal is a very drastic move that this Court will resort to only in exceptional circumstances and urged us to take into account the circumstances of this matter, in particular the fact that the Appellant did not get legal representation, his previous counsel having passed on and not allow him to be driven out of the seat of justice. 7.Up to that point the fulcrum of Mr. Kirimi’s argument in relation to computation of time for purposes of the proviso to Rule 84 of the Rules of the Court, was basically that time was to be reckoned from 27th November, 2024 when the request for typed proceedings was made and 28th February, 2025 when the Decree was availed to the Appellant’s previous counsel and not 7th February 2025 when the Deputy Registrar ELC notified him that the typed proceedings were ready for collection. 8.But when the Court pointed out to him that under the proviso to Rule 84(1) the only time that is to be excluded in computing the time for filing of the appeal is such time as the Registrar of the Superior Court may certify as having been necessary for preparation of the proceedings, learned counsel readily agreed that a strict reading of Rule 84 means that the appeal was indeed filed out of time. Counsel further conceded that based on rule 84 the appeal was out of time and admitted that to regularize the position, the Appellant should have made an application to have the appeal admitted out of time. 9.Notwithstanding that concession the Appellant’s counsel earnestly urged us to exercise our discretion in favor of the Appellant and sustain the appeal. We, however, are unable to do so despite his impassioned plea as the Rules of this Court do not permit exercise of our discretion to save an appeal filed out of time unless formally moved under Rule 4. The Memorandum and Record of Appeal were admittedly filed out of time and there is no application before us for extension of time under Rule 4 of the Court of Appeal Rules. We are bound to apply the rules dispassionately. 10.The Applicant has urged us to strike out the appeal under Rule 86[b] because an essential step was not taken within the prescribed time. He has demonstrated that the appeal was filed sixteen days outside the prescribed time and the appellant has conceded the point. We are satisfied that the application dated 15th May 2026 is merited and allow it with costs to the Applicant. There is no competent appeal before the Court. 11.Accordingly, we strike out the Appellant’s appeal with costs to the Applicant who is the 2nd Respondent in the appeal. In light of these findings, the Appellant’s application dated 27th July, 2025 seeking stay of execution falls by the way side. The Appeal upon which that application was predicated having been struck out the application for stay cannot stand. It is also struck out with costs to the 2nd Respondent. Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.S. GATEMBU KAIRU,(P), FCIArb, C.Arb.....................................JUDGE OF APPEALG. V. ODUNGA....................................JUDGE OF APPEAL MURUNGI B. KAIRARIA...................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR