https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1545

Kaanzo v Inspector General of Police & 4 others (Civil Appeal (Application) E406 of 2022) [2026] KECA 1545 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1545 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E406 of 2022 SG Kairu, GV Odunga & HI Ong'udi, JJA July 31, 2026 Between Pauline Mwikali Kaanzo Appellant and Inspector General of Police 1st Respondent Director of Public Prosecution 2nd Respondent Senior Resident Magistrate Kilungu 3rd Respondent Robin Allan Stanley 4th Respondent and Stanley & Sons Limited Interested Party (Being an application to strike out the appeal against the Ruling and order of the High Court Makueni (G. Dulu J) delivered on 18th May 2022inMakueni JR Case. No. 02 of 2021) Ruling 1.The applicants herein have moved this Court through the Notice of Motion dated 19th November 2025 brought pursuant to Rules 77, 79, 84, 85, 86, and 92 of the Court of Appeal Rules, 2022 and all other enabling laws. The applicants seek to have the appellant/respondent’s Appeal struck out with costs for being incompetent and for failure to comply with the mandatory provisions of the Court of Appeal Rules. 2.The application is premised on the grounds on its face plus the 1st applicant’s affidavit sworn on the same date. He deponed that the appellant/respondent failed to serve the Notice of Appeal within the mandatory timelines prescribed by Rule 79 of this Court’s Rules. He further deponed that the appellant/respondent neglected to lodge or serve the Record of Appeal within the 60-day window required by Rule 84 and equally failed to serve the Memorandum of Appeal as per Rule 92, rendering the Appeal a nullity. He averred that the applicants only became aware of the intended appeal on 27th November, 2023 upon being served with a Notice of Change of Advocates. By that time, it was already one year and seven months after filing of the Notice of Appeal. To him, the continued existence of this Appeal constitutes an abuse of the court process. 3.He averred that the ownership of the suit land, L.R. No.1748, had already been conclusively determined and upheld in favour of the 2nd applicant by the Nairobi Environment and Land Court (ELC) in Constitutional Petition No. E004 of 2021. Therefore, it was evident that his company holds an absolute and indefeasible title to the property. He further averred that his advocates attended a case management session before this Court, but there was no appearance by the appellant or her advocates, demonstrating lack of interest in prosecuting the intended appeal. He averred that it is just and equitable for this Court to strike out the said appeal for failure by the appellant to lodge and serve the Notice of Appeal within the stipulated time. He added that the applicants stand to suffer prejudice and incur unnecessary expenses, if the appeal remains pending indefinitely. He thus, urged the court to strike out the said Appeal. 4.When the application came up for hearing on 18th March 2026, learned counsel Ms. Kyania holding brief for Dr. Benjamin Musao appeared for the applicants. The appellant/respondent neither filed written submissions nor appeared, despite having been served with notice of hearing to contest the application. Ms. Kyania made brief oral highlights of their written submissions in plenary. 5.In the submissions dated 5th March 2026, learned counsel for the applicants asserted that despite being served with the motion on 9th December, 2025, the appellant/respondent failed to file any response. He submitted that the appellant /respondent had blatantly disregarded the mandatory provisions of this Court’s Rules, specifically, Rule 79, which requires the service of a Notice of Appeal on all affected parties within seven days of lodging the same. Additionally, that the appellant/respondent failed to adhere to Rule 84, which mandates lodging of the Record of Appeal within sixty days and Rule 92, which requires service of the Memorandum of Appeal and Record of Appeal within seven days of its being lodged. 6.Counsel further submitted that the appellant/respondent failed to take any steps to regularize the Appeal by not seeking an extension of time under Rule 4 of the Rules. He asserted that service is a critical juridical act and therefore, non-service is a fundamental defect that renders an entire appeal incompetent. He cited the case of Mae Properties Limited v Joseph Kibe & another [2017] KECA 238 (KLR), where the Court held that its Rules are indispensable and command obedience for the orderly administration of justice. He further referred to the Court of Appeal Rules which are couched in mandatory terms and must therefore be complied with. 7.He urged the Court to exercise its inherent jurisdiction as permitted under Rule 80, which allows for the striking out of an appeal when an essential procedural step was not taken or was taken out of time. He further placed reliance on the case of Nzai & 57 others v Invesco Assurance Co. Ltd [2022] KECA 66 (KLR), which relied on the decision in Patrick Kiruja Kithinji vs. Victor Mugira Marete [2015] eKLR to affirm that incurably defective appeals must be dismissed. Counsel asserted that allowing this appeal to subsist would reward a blatant disregard for the law and defeat the very purpose of appellate procedure. 8.He contended that the appeal amounted to an abuse of the appellate process and an attempt to re-litigate settled issues. That the ownership of the subject property, L.R. No. 1748, Kiima Kiu/Kalonzoni, was already conclusively determined in ELC Constitutional Petition No. E004 of 2021, where the Court upheld the 2nd Applicant’s title on 25th September, 2025. He asserted that litigation must come to an end and that the Court should not be used as a platform for the prolonged harassment of a registered proprietor. He added that omissions by the appellant/respondent go to the jurisdictional foundation of the appeal and are not minor procedural lapses. He urged the Court to strike out the appeal in its entirety with costs to the applicant. 9.We have read and carefully considered the application, the submissions by the applicants and the law. This application seeks to have the appellant/respondent’s Appeal struck out for being incompetent and for failure to comply with the mandatory provisions of this Court’s Rules. 10.The applicants’ main ground for seeking the striking out of the Appeal is that the appellant/respondent failed to adhere to Rules 4, 79 and 84 of this Court’s Rules. 11.Rule 77 of this Court’s sets out the procedure and timelines for filing a notice of appeal. 12.Rule 79(1) of the Rules gives further directions on the same. 13.Furthermore, Rule 84 (1) and (2) of the Rules provides as follows: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. 14.Additionally, Rule 86 empowers the court to strike out a Notice or Record of Appeal. It provides as follows: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 or the appeal, as the case may be, on the ground;-a.that no appeal lies;b.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 after the date of service of the notice of appeal or record of appeal, as the case may be. 15.In the instant application, the applicants’ allegations remain uncontroverted. Further, from the court record it is quite clear that after timeously lodging her Notice of Appeal and Memorandum of Appeal, the appellant /respondent did not serve the applicants with the same and she did not also file a record of appeal within the 60 days prescribed. Furthermore, even at the time of the hearing of this application there was no appearance by or for the appellant/respondent. 16.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.” 17.Further, while this Court has discretion in determining whether to strike out an appeal for non-compliance, this discretion must be exercised judiciously, considering the extent and impact of the defects. In Tome & Another v Attorney General & 2 Others [2021] KECA 150 (KLR) this court stated that:“It is now a settled principle that striking out a pleading is a draconian act, which may only be resorted to in plain and outright instances. The power of this court to strike out an appeal is discretionary and is exercised based on the peculiar circumstances of each case.” 18.The rules of this Court set out clear timelines and requirements for the prosecution of appeals. In our view, failure to comply with these rules, particularly concerning preparation and timely filing of a proper Record of Appeal, is fatal to an appeal. Further, the lack of opposition by the appellant/respondent implies that the facts and grounds presented by the applicants are conceded or cannot be effectively challenged. 19.Consequently, based on the unchallenged evidence and grounds presented by the applicants, we find sufficient basis laid for striking out the appeal, which we hereby do. The application dated 19th November, 2025 is allowed with costs to the applicants. 20.Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.S. GATEMBU. KAIRU, FCIArb, C.ArbJUDGE OF APPEAL.....................................G.V. ODUNGAJUDGE OF APPEAL.....................................H.I. ONG’UDIJUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR