https://new.kenyalaw.org/akn/ke/judgment/keca/2026/931

Mwadilo & another v Sagalla Ranchers Limited (Civil Appeal (Application) E003 of 2023) [2026] KECA 931 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 931 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal (Application) E003 of 2023 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 15, 2026 Between Wilmont Mwadilo 1st Applicant Patrick Mbinga 2nd Applicant and The Sagalla Ranchers Limited Respondent (Appeal from the decision of the High Court of Kenya at Voi (J. N. Onyiego, J.) dated 11th October, 2022 in HCCC No. 1 of 2018 Civil Suit 1 of 2018 ) Ruling 1.As a brief background to this application, the Respondent, Sagalla Ranchers Limited, (the Appellant in the appeal) brought an action against its former directors, Wilmot Mwadilo and Patrick Mbinga, the Applicants (the Respondents in the appeal) alleging the fraudulent leasing and subsequently sale of the company’s property, known as LR 12177/4 (the suit property) to Izera Enterprises without its consent or authority. The Respondent sought a declaration to nullify the transfer of lease and all the transactions flowing from it, with a further prayer that the suit property revert to it. Also sought was an order for indemnity against any third-party claims, together with costs, interest, and any relief the court deemed just. 2.While the matter was pending, the Respondent filed a Notice of Motion dated 8th October 2021 seeking leave to amend its plaint. The Applicants opposed the application and raised a preliminary objection dated 19th December 2021 in which they contended that the High Court lacked jurisdiction to hear and determine the matter as, pursuant to Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act, disputes relating to land fall within the exclusive jurisdiction of the Environment and Land Court. They further contended that the issues in the suit were res judicata, the earlier cases of—Mombasa ELC No. 210 of 2013 and Mombasa ELC No. 175 of 2014—which they claimed involved similar parties and the same subject matter. 3.Alongside the preliminary objection, the 1st Applicant, Wilmont Mwadilo, swore a replying affidavit reiterating that the proposed amendment gave rise to an entirely new claim, that the suit was res judicata similar suits already heard and determined, and that the High Court could not entertain a land dispute. The Applicants, further contended that the application for amendment was fatally defective having been supported by an affidavit sworn by a person who lacked authority, as no company resolution authorizing the suit had been produced. 4.The High Court found that the entire dispute concerned ownership and transfer of land, which falls under the exclusive jurisdiction of the Environment and Land Court, and therefore it had no jurisdiction to hear the case. On this basis, the preliminary objection was upheld, and the suit was struck out for being filed in the wrong court. 5.Aggrieved by that decision, the Respondent lodged a Notice of Appeal dated 18th October 2022 and subsequently filed the Record of Appeal on 16th January 2023 seeking to appeal against the High Court’s ruling of 11th October, 2022. 6.In response, the Applicants filed a Notice of Motion dated 17th March 2023 brought pursuant to Rules 44, 64 and 86(b) of the Court of the Appeal Rules, 2010 seeking inter alia, an order to strike out the Respondent’s Record of appeal dated 6th December, 2022 and filed on 16th January, 2023. 7.The Applicants’ Motion was brought on grounds that; following delivery of the ruling allowing the Applicants’ Preliminary objection, the Respondent had filed a Notice of Appeal dated 18th October 2022 and obtained a Certificate of Delay on 1st November 2022; that thereafter, the Respondent filed a Record of Appeal on 16th January 2023, which was served upon the Applicants on 20th February 2023; that the proceedings contained in the Respondent’s Record of Appeal were certified by the Deputy Registrar on 18th November 2022 but, that the Certificate of Delay indicated that the proceedings were certified on 21st November 2022, and that the ruling annexed to the Record of Appeal was not certified by the Deputy Registrar. 8.It was further contended that the Certificate of Delay indicated that it was issued at Nairobi (not Voi) on 1st November 2022 and dated at Voi on 1st December 2022; that since the Certificate of Delay was issued on 1st November 2022, the 60 days period for filing the Record of Appeal lapsed on 1st January 2023, and therefore the Record of Appeal, was filed outside the prescribed timelines. It was further contended that, although the Record was filed on 16th January 2023, it was not served on the Respondents until 20th February 2023, which once again, was outside the prescribed timeline for service under Rule 84 of the Court of Appeal Rules. 9.The Applicants went on to assert that a certified true copy of the decree or order appealed against was also not included in the Record of Appeal. It was contended that the highlighted omissions and irregularities rendered the Record of Appeal incurably defective, and this Court was urged to strike out the Record of appeal with costs. 10.The Application was supported by the affidavit of Gikandi Ngibuini, Counsel for the Applicants sworn on the same date and which largely reiterated the grounds of the Application. 11.In response, the Respondents filed a Replying affidavit sworn by Raphael Lewela Mbinga, who asserted that some of the alleged irregularities were non- existent while others arose from omissions by the Deputy Registrar and as a result were not fatal to the appeal; that paragraph 4 merely highlighted a typographical error which did not go to the root of the appeal. It was acknowledged that although the ruling annexed to the Record of Appeal had not been certified, the omission was attributable to the Deputy Registrar which omission did not justify striking out the appeal. 12.The deponent further averred that the Certificate of Delay, clearly showed that it was issued on 1st December 2022, contrary to the Respondent’s contention that it was issued on 1st November 2022, and therefore, the Record of Appeal was filed within the prescribed time. It was asserted that the Applicants had miscalculated the statutory sixty-day period by failing to exclude the Court of Appeal’s December Vacation which ran from 21st December 2022 to 12th January 2023, which meant that, the Record of Appeal filed on 16th January 2023 was lodged within time, with service having been effected on 20th February 2023. 13.With regard to the contention that the Record of Appeal lacked a certified copy of the order appealed from, it was asserted that this omission was caused by the Deputy Registrar at Voi, and that the Appellant had taken immediate steps to rectify the omission by requesting for a certified order through a letter dated 27th March 2023, after which the certified order was duly supplied. He further deposes that it was improper for counsel for the Respondents to swear an affidavit on contested matters, as this blurred the distinction between advocate and witness, contrary to established principles regarding the role of advocates. 14.Finally, it was deponed that this Court possesses the discretion to grant leave to file a Supplementary Record of Appeal should that be necessary, and the Court was invited to reject the Respondents’ attempt to benefit from errors attributable to the court registry. The Court was urged to dismiss the Application with costs on the basis that any omissions had already been corrected, and that none of the alleged defects were fatal to the appeal. 15.When the motion came up for hearing on a virtual platform, learned counsel Mr. Gikandi appeared for the Applicants while learned Senior Counsel Mr. Kurgat appeared for the Respondent. 16.Counsel for the Applicants relied on their written submissions, and submitting orally, counsel went on to abandon the complaint that the record was not filed within the prescribed time, but maintained that the Respondent failed to serve the Record of Appeal on the Applicants within the prescribed time; that they only served it on them on 20th February 2023—thirty-four days after filing the Record—contrary to the strict seven-day service requirement specified by Rule 92(1) of the Court of Appeal Rules, 2022. 17.Counsel further submitted that the Record of Appeal was fatally incomplete as it failed to include a certified true copy of the decree or order appealed against, which was a mandatory requirement under Rule 89(1) of the Rules; that failure to include this essential document rendered the record incompetent, as the appellate court is required to have a decree or order upon which to exercise its appellate jurisdiction; that no explanation was provided to explain either the failure to serve within 7 days or the omission to include a certified order. 18.To reinforce this position, counsel relied on the cases of Daniel Nkirimpa Monirei vs Sapialel Ole Koilel [2016] eKLR; Stephen Kinoro Kamau vs Wanjiku Kinuthia 7 Another [2005] eKLR; Mistry Premji Ganji (Investments) Ltd vs KeNHA [2019] eKLR; Tropicana Hotels Ltd vs SBM Bank, Mombasa Civil Appeal No. 9 of 2019—for the proposition that failure to comply with mandatory service timelines or to include essential documents in the record renders an appeal incompetent and liable to be struck out. 19.In their written submissions, counsel for the Respondent submitted that the Applicant’s Motion is premature, and aimed at striking out the appeal on purely technical grounds, despite the existence of reasonable explanations for the omissions; that although the Record of Appeal filed on 16th January 2023 did not initially include a certified copy of the order appealed from, this omission was solely attributable to the Deputy Registrar at the Voi High Court, who failed to forward the certified order along with the proceedings; that in any event the Applicants had abandoned this ground after the Respondent supplied the certified order. 20.While acknowledging that service was effected on 20th February 2023, counsel argued that the delay did not render the appeal incompetent, particularly because the Respondents had acted diligently and the Applicants did not stand to suffer any prejudice; that striking out an appeal “in its infancy” is a drastic measure, and courts should lean towards substantive justice rather than technical exclusion. The cases of Attorney General vs Zinj Limited [2020] eKLR; Kenya Hotel Properties Ltd vs Attorney General [2021] eKLR, and Ferdinand Waititu vs Republic [2020] eKLR, were relied on for the proposition that omissions in a Record of appeal should not lead to striking out where (i) reasonable explanation is given, (ii) the delay or omission is not inordinate, and no prejudice is occasioned to the opposing party. Counsel therefore urged that the Respondents having proffered cogent reasons for both the omission and the delay, in the spirit of Article 159 of the Constitution, the application should be dismissed with costs. 21.Having considered the Motion and the parties’ oral and written submissions, it is noted that the Applicants having abandoned the ground that the Record of Appeal was filed out of time, this would leave two grounds for determination, these being; i) whether the failure to include the decree rendered the Record of appeal incompetent and defective; and ii) whether the delayed service of the Record of appeal on the Applicants warranted the striking out of the Record of Appeal under Rule 86. 22.Rule 89 (1) of the Rules of this Court, requires that the certified decree or order to be included in the Record of appeal. The Respondents explained that due to an omission on the part of the Deputy Registrar, the order was not attached. Our consideration of the Record before us discloses that though it was not attached to the initial Record of appeal, it was nevertheless included in a Supplementary Record, which in effect overcomes the ground that no certified order was included in the Record of appeal. For this reason, this ground fails. 23.Turning to the failure to serve the Record of appeal on the Applicants within the prescribed time frame, Rule 92 (1) specifies that:“The appellant shall before or within seven days after lodging the memorandum of appeal and the record of appeal in the appropriate registry, serve copies there of on each respondent who has complied with the requirement of rule 81”. 24.In the case of Pradeep Harish Hindocha vs Catherine Matei Chena [2024] KECA 819 (KLR) this Court stated:“It is clear that rule 92(1) requires service of a record of appeal before it is lodged or within 7 days of being lodged. In this case, there is no doubt that the respondent did not comply with this provision. The question then is what becomes the fate of a record of appeal not served as per rule 92(1). In our view, and as has previously been held in several decisions of this Court, the rule is couched in mandatory terms. An appellant must comply with the provision lest the appeal is rendered incompetent and fall prey to being struck out pursuant to the provisions of rule 86(b). The respondent having not served the applicant with a record of appeal within the requisite period, it follows then that he does not have a competent appeal.” 25.In the instant case, the Notice of Appeal was lodged on 18th October 2022, and the Record of Appeal was filed on 16th January 2023. The Applicant’s complaint is that the Respondents failed to serve the Record upon them within the stipulated period of 7 days, but instead served them with the Record on 20th February 2023, which was 34 days after the filing of the Record, contrary to requirements of Rule 92(1) of the Rules. 26.No doubt, the pleadings disclose that the Respondents served the Record on the Applicants way beyond the stipulated period of 7 days. And though the Respondents were cognaisant that the delay required to be explained, it was not demonstrated that they have at any time sought to regularize this infraction by seeking to comply with the rules by having time enlarged in which to serve the Applicants with the Record of appeal out of time, thereby exposing the Record of appeal to the risk of falling victim to the provisions of Rule 86 of this Courts’ rules. 27.As a consequence, Rule 86 of this Court’s Rules is clear. It stipulates that:“A person affected by an appeal may, at any time, either before or after the institution of the appeal, apply to the Court to strike out the notice of appeal or the appeal, as the case may be, on the ground—a.that no appeal lies; orb.that some essential step in the proceedings has not been taken, or has not been taken within the prescribed time:Provided 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 the record of appeal, as the case may be.” 28.It is now settled principle that the power of this Court to strike out an appeal is discretionary, and is exercised based on the peculiar circumstances of each case. See Standard Ltd & another vs Onchieku (Civil Application 134 of 2019) [2023] KECA 1275 (KLR). 29.The timelines prescribed by Court’s Rules for the taking of various steps in appeals to this Court are expressed in clear and unambiguous terms and are non-negotiable so as to ensure the proper adjudication of appeals. The Respondent having failed to serve the Applicants within the prescribed timeframe of 7 days, rendered the Record of appeal liable to be struck out under Rule 86 of this Courts rules. 30.In the premises, the Notice of Motion dated 17th March 2023 is merited and is allowed, with the result that the Record of appeal dated 6th December 2022 is hereby struck out with costs to the Applicants.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY, 2026.A. K. MURGOR…………...….............JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.…………...…...............JUDGE OF APPEALG. W. NGENYE-MACHARIADEPUTY REGISTRAR…………………............ JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR