Muli v Kenya Commercial Bank Ltd & another (Civil Appeal (Application) E212 of 2022) [2026] KECA 1245 (KLR) (3 July 2026) (Ruling)

Muli v Kenya Commercial Bank Ltd & another (Civil Appeal (Application) E212 of 2022) [2026] KECA 1245 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1245 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E212 of 2022 DK Musinga, P Lilan & JO Okello, JJA July 3, 2026 Between Reuben Musyoki Muli Appellant and Kenya Commercial Bank Limited 1st Respondent UAP Life Assurance Company Limited 2nd Respondent (Being an application to strike out the Notice of Appeal dated 8th July 2020 and the Record of Appeal dated 8th April 2022 against the judgment and decree of the High Court at Nairobi (Tuiyott, J.) (as he then was) dated and delivered on 30th June 2020 in Commercial and Tax Division HCC No. 339 of 2016 Civil Case 339 of 2016 ) Ruling 1.Before this court is a notice of motion dated 10th May 2022 which is brought under rules 42(1), 43, 77(1), 82(1) and (2) and 84 of the Court of Appeal Rules, 2010. The principal orders sought are that the notice of appeal dated and lodged in the High Court on 8th July 2020 and the record of appeal dated 8th April 2022 and filed on 12th April 2022 be struck out. The applicant further seeks the costs of both the application and the appeal. 2.For ease of reference and consistency throughout this ruling, Reuben Musyoki Muli, who is the appellant in the appeal and a respondent in the present application, shall hereinafter be referred to as “the appellant.” UAP Life Assurance Company Limited, being the 2nd respondent in the appeal and the applicant in the present motion, shall be referred to as “the applicant”, while Kenya Commercial Bank Limited, the 1st respondent in the appeal, shall be referred to as “the 1st respondent”. 3.The applicant's case as set out on the face of the motion and in the supporting affidavit sworn by its advocate on record, Eric Thige Muchiri, is that on 30th June 2020, the High Court (Tuiyott, J) (as he then was), delivered judgment in High Court Commercial Case No. 339 of 2016, Reuben Musyoki Muli v Kenya Commercial Bank Limited & UAP Life Assurance Company Limited, dismissing the appellant's suit with costs to the applicant and the 1st respondent. According to the applicant, the matter thereafter appeared to have been concluded, until 21st April 2022 when the appellant served upon its advocates a record of appeal in Nairobi Civil Appeal No. E212 of 2022. The record of appeal was dated 8th April 2022 and filed on 12th April 2022. 4.The applicant avers that service of the record of appeal came as a complete surprise because neither it nor its advocates had previously been served with a notice of appeal or a letter bespeaking proceedings, documents which would ordinarily signify an intention to challenge the judgment of the High Court. Upon perusing the record of appeal, the applicant discovered that it contained a notice of appeal dated 8th July 2020. The applicant nevertheless maintains that the notice of appeal had never been served upon its advocates, either physically or electronically, notwithstanding that the appellant had their correct postal, physical and email addresses. 5.The applicant consequently contends that the appellant failed to comply with rule 77(1) of the Court of Appeal Rules, 2010 by failing to serve the notice of appeal upon its advocates within seven days of its lodgment. It is further asserted that no application was made to this court for enlargement of time to effect such service. 6.The applicant further avers that the appellant did not serve upon it a written request for certified copies of the proceedings within thirty days of the delivery of judgment as required by rule 82(2) of the Court of Appeal Rules, 2010. It is averred that a review of its advocates' electronic mail records revealed no communication from the appellant's advocates serving either a notice of appeal or a letter bespeaking proceedings during the material period. 7.The applicant also challenges the appellant's reliance on a certificate of delay issued on 11th February 2022. Although the certificate indicates that the appellant applied for proceedings on 7th July 2020, the applicant maintains that it was never served with such a request and remained a stranger to it. It is therefore contended that the period certified in the certificate of delay cannot be excluded from the computation of time under rule 82, and that the appellant is not entitled to the benefit of the proviso to that rule. 8.On that basis, the applicant contends that the appellant ought to have lodged the appeal within sixty days of filing the notice of appeal on 8th July 2020, on or before 16th September 2020. Since the record of appeal was only filed on 12th April 2022, it is contended that the appeal was instituted more than 644 days out of time and without leave of the court. The applicant further avers that the appellant has not offered any explanation for the delay and cannot avail himself of the provisions of rule 82(1) and (2). 9.The applicant further contends that the appellant neither sought nor obtained leave to enlarge time for service of the notice of appeal or for the filing and service of the record of appeal. Consequently, it is argued that both the notice of appeal and the appeal itself are incompetent and liable to be struck out. 10.The applicant also avers as to an irregularity in representation, stating that the notice of appeal indicates that the appellant was represented by Manthi Masika & Company Advocates, acting jointly with JA Makau & Company Advocates, yet Manthi Masika & Company Advocates were not on record for the appellant when the notice of appeal was lodged and only came on record on 13th July 2021. 11.Finally, the applicant contends that following the dismissal of the suit by the High Court, it proceeded on the basis that the litigation had come to an end and filed a party and party bill of costs dated 28th January 2021 against the appellant. Taxation proceedings thereafter progressed and a ruling was scheduled before the Deputy Registrar on 23rd May 2022 (now past). The applicant contends that the appeal was only filed after the taxation process had substantially advanced and was intended to forestall the recovery of costs awarded by the High Court. For that reason, the appeal is described as an ambush upon the applicant and one that ought to be struck out with costs. 12.Although served with the application, the appellant did not file any replying affidavit in response thereto. The appellant, however, filed written submissions dated 6th March 2026 opposing the application. 13.At the hearing of the application, learned counsel Mr. Lundi appeared for the applicant. There was no appearance on behalf of the appellant. Highlighting the applicant's written submissions dated 6th March 2026, counsel contended that the application was properly before the court, having been filed within the thirty-days’ period prescribed under rule 84 of the Court of Appeal Rules, 2010 following service of the record of appeal on 21st April 2022. Counsel further maintained that the appellant failed to serve the notice of appeal within seven days of its lodgment as required under rule 77(1) of the Rules, and similarly failed to serve the applicant with a letter bespeaking proceedings within thirty days of the delivery of judgment, thereby disentitling him from relying on the certificate of delay to exclude time for purposes of instituting the appeal. 14.Counsel reiterated that the appeal ought to have been instituted on or before 16th September 2020 and that its filing on 12th April 2022 rendered it incompetent for having been lodged more than 644 days out of time and without leave of the court. Counsel relied on Daniel Nkirimpa Monirei v Sayialel Ole Koilel & 4 Others [2016] KECA 148 (KLR), Mitsumi Computer Garage Ltd v Freight in Time Ltd & 4 Others [2016] KECA 246 (KLR) and Mbarak v Registrar of Titles & 3 Others; Omido & another (Interested Parties) [2024] KECA 687 (KLR) for the proposition that compliance with the timelines prescribed by the Court of Appeal Rules, particularly those governing service of a notice of appeal, is mandatory and that such non- compliance is not curable under article 159 of the Constitution. Counsel further relied on Justus Aloo Ogeka & 6 Others v Kenya Union of Commercial Food and Allied Workers & 2 Others [2018] KECA 872 (KLR), Kirira v Deputy Registrar High Court Nyeri & 4 Others [2025] KECA 953 (KLR) and Patrick Kiruja Kithinji v Victor Mugira Marete [2015] KECA 872 (KLR) in support of the argument that a party who fails to serve a letter bespeaking proceedings cannot benefit from the exclusion of time contemplated under rule 82, and that an appeal filed outside the prescribed timelines without leave is incompetent and liable to be struck out. On that basis, counsel urged this court to strike out both the notice of appeal and the record of appeal with costs. 15.On his part, the appellant, vide written submissions dated 6th March 2026, contends that the failure to serve the notice of appeal within the prescribed timelines was neither intentional nor deliberate, but was occasioned by the inadvertence of his former advocate, who failed to instruct his clerk to effect service upon the respondents in time. The appellant contends that the mistake of counsel ought not to be visited upon him as he has an arguable and meritorious appeal. He further maintains that no prejudice was occasioned to the applicant, which had ample opportunity to peruse the record of appeal after it was served in April 2022. In support of that argument, the appellant relies on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] KECA 113 (KLR), where the court underscored the principle that procedural lapses which do not affect jurisdiction or occasion prejudice should not automatically result in the striking out of proceedings and that courts ought, where appropriate, to favour substantive justice over rigid adherence to procedural technicalities. 16.The appellant further disputes the applicant's contention that the notice of appeal was only served together with the record of appeal, asserting that the notice of appeal appearing at pages 37 and 38 of the record demonstrates that it had been served upon and received by the applicant's advocates on 7th September 2020. The appellant therefore contends that the applicant had been aware of the intended appeal for over two years and could not properly characterize the appeal as an ambush or as having been lodged solely to defeat the taxation proceedings. Based on the foregoing, the appellant asserts that the present application was itself filed out of time and that the applicant had failed to approach the Court with candour and good faith. In that regard, reliance is placed on Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KECA 175 (KLR), where the court reiterated that equitable relief is only available to a litigant who demonstrates utmost good faith. Further reliance is also placed on Kisii Petroleum Products Ltd v Kobil Petroleum Ltd & 2 Others [2006] KECA 291 (KLR), where the court held that a party who fails to act candidly cannot benefit from the court's equitable discretion. The appellant accordingly urges this court to dismiss the application with costs. 17.We have considered the application, the affidavit in support thereof, the written submissions filed by the parties, the authorities cited and the law. This application principally turns on whether the appellant complied with the mandatory requirements governing the institution of an appeal under rules 77 and 82 of the Court of Appeal Rules, 2010 and, if not, whether the resultant defects are capable of sustaining the notice of appeal and the record of appeal presently before the court. 18.The applicant's complaint is straightforward. It contends that although the notice of appeal was lodged on 8th July 2020, it was never served upon its advocates within the period prescribed under rule 77(1) of the Court of Appeal Rules, 2010. It further contends that it was never served with the letter bespeaking proceedings and that, consequently, the appellant is not entitled to rely on the certificate of delay issued on 11th February 2022 for purposes of excluding time under rule 82. The appellant disputes those assertions and maintains that service of the notice of appeal was effected on 7th September 2020. 19.We have carefully examined the notice of appeal contained in the record of appeal. The document bears what appears to be a stamp impression carrying the date "07 Sep 2020" and the time "11.47". However, the stamp is largely illegible. From the material before us, it is impossible to discern the identity of the office upon which the stamp was allegedly affixed or determine whether it belongs to the applicant's advocates. The stamp, standing on its own, does not provide satisfactory proof of service. 20.We appreciate that the legal burden of proof ordinarily rests upon the party alleging a fact. However, once the applicant specifically denied service on oath and deponed that neither it nor its advocates had ever been served with the notice of appeal or the letter bespeaking proceedings, the evidential burden shifted to the appellant to demonstrate that service had indeed been effected. The appellant did not file a replying affidavit controverting those factual depositions. In addition, he did not place before this court an affidavit of service from the advocate, clerk or process server said to have effected service. The assertion that service was effected on 7th September 2020 appears only in the appellant's written submissions. It is trite that submissions, however persuasive, do not constitute evidence. 21.In any event, and even if we were to accept, peradventure, that the stamp bearing the date 7th September 2020 constituted proof of service upon the applicant's advocates, such service would still have been effected outside the period prescribed by rule 77(1) of the Court of Appeal Rules, 2010. The notice of appeal was lodged on 8th July 2020. Service allegedly effected on 7th September 2020 would therefore have occurred approximately two months later and well beyond the seven days allowed by the rule. There is no evidence that the appellant sought or obtained leave to extend time for service. Accordingly, even on the appellant's own version of events, there would still be non-compliance with rule 77(1). 22.The appellant urged us to excuse the omission on the ground that it resulted from the inadvertence of his former advocate who allegedly failed to instruct his clerk to effect service. We are unable to accept that explanation. First, the allegation was not supported by any affidavit from the advocate concerned setting out the circumstances giving rise to the omission. The court was therefore left with a bare assertion from the bar. Secondly, there is no evidence that the appellant took any steps to follow up the progress of his appeal or to ensure compliance with the Rules during the considerable period between the lodging of the notice of appeal and the filing of the record of appeal. 23.We are alive to the principle that a litigant should not invariably be punished for the mistakes of counsel. In Belinda Murai & 9 others v Amos Wainaina [1979] eKLR, Madan, JA famously observed that a mistake is a mistake and that the door of justice should not be closed because a mistake has been made by a person of experience who ought to have known better. However, that principle does not afford a blanket excuse for every procedural default. A party seeking the court's indulgence must place before the court sufficient material explaining the mistake and demonstrating why the court's discretion should be exercised in his favour. 24.More fundamentally, a case belongs to the litigant and not the advocate. In Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR, Waki, JA emphasized it is not enough for a party in litigation to simply blame the advocates on record for all manner of transgressions in the conduct of the litigation. The parties themselves have a responsibility to show interest in and to follow up their cases even when they are represented by counsel. The same principle has been echoed in numerous decisions of this court to the effect that while mistakes of advocates may in appropriate circumstances be excused, litigants are expected to exhibit diligence in the prosecution of their cases. Based on the foregoing, we find no basis upon which to excuse the appellant's failure to comply with the Rules. 25.We now turn to the effect of the appellant's failure to prove service of the letter bespeaking proceedings. Rule 82(1) of the Court of Appeal Rules, 2010 requires an appeal to be instituted within sixty days of the date when the notice of appeal was lodged. The proviso to that rule permits exclusion of the period certified by the Registrar as necessary for the preparation and delivery of proceedings, but only where the appellant has applied for those proceedings in writing and served the request upon the respondent in accordance with rule 82(2). 26.In Patrick Kiruja Kithinji v Victor Mugira Marete [2015] eKLR, this court held thus:“The applicant deposed that he was never served with any letter requesting for proceedings. We note that the respondent never denied the same. By dint of Rule 82(2) the respondent cannot rely on the proviso of the said rule in the computation of time for filing the appeal. Consequently, time within which the respondent was required to file the appeal begun running on 27th March, 2014 and lapsed on 26th May, 2014. Therefore, the appeal was filed out of time without leave of this court.” 27.In the present case, the appellant did not place before this court any evidence demonstrating service of the letter bespeaking proceedings upon the applicant. Consequently, he was not entitled to invoke the certificate of delay issued on 11th February 2022 to exclude time from computation under rule 82. Time therefore began to run uninterrupted from 8th July 2020 when the notice of appeal was lodged. 28.It follows that the appeal ought to have been instituted within sixty days thereof, namely on or before 16th September 2020. Instead, the record of appeal was only filed on 12th April 2022, approximately 644 days later. No application for extension of time was made and no leave was obtained from this court validating that delay. 29.In Patrick Kiruja Kithinji v Victor Mugira Marete (supra), this court held that the question whether an appeal has been filed within the prescribed time goes to the jurisdiction of the court. The court observed that it only has jurisdiction to entertain appeals that are filed within time or those filed out of time with leave of the court, and that an appeal lodged out of time without leave is not curable under article 159 of the Constitution. We respectfully adopt that reasoning. The omissions complained of in the present matter are not mere procedural lapses. They concern mandatory steps governing the institution and prosecution of an appeal before this court. The appellant failed to establish service of the notice of appeal within the period prescribed under rule 77(1), failed to demonstrate service of the letter bespeaking proceedings as required under rule 82(2), and consequently could not avail himself of the benefit of the certificate of delay. As a result, the record of appeal, having been lodged long after the prescribed period and without leave of the court, is, for all intent and purposes, incompetent. 30.In the end, we are satisfied that the notice of appeal dated 8th July 2020 and the record of appeal dated 8th April 2022 were not instituted in compliance with the Court of Appeal Rules, 2010 and are therefore incompetent. The applicant's notice of motion dated 10th May 2022 is accordingly merited and is hereby allowed. Consequently, the notice of appeal dated 8th July 2020 and the record of appeal dated 8th April 2022 are hereby struck out with costs to the applicant. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY, 2026.D. K. MUSINGA……………………………JUDGE OF APPEALP. LILAN……………………………JUDGE OF APPEALDR. J. O. OKELLO……………………………JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR.