https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1590

Jimma v Kenya School of Law & another (Civil Application E724 of 2025) [2026] KECA 1590 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1590 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E724 of 2025 W Karanja, LM Njuguna & S Radido, JJA July 31, 2026 Between Robert Uri Dabaly Jimma Applicant and Kenya School Of Law 1st Respondent Kenya National Qualifications Authority 2nd Respondent (Being an application to have the respondents’ Notices of Appeal dated 21st March 2021 and 16th March 2021 be deemed as withdrawn, in respect of the judgment and decree of the High Court of Kenya at Nairobi (Mrima, J.) dated 25th February, 2021inConst. Petition No. 101 of 2020) Ruling 1.Before this Court is a notice of motion dated 28th November 2025, brought by Robert Uri Dabaly Jimma (“the applicant”) pursuant to rule 85 of the Court of Appeal Rules 2022, and supported by an affidavit sworn by the applicant on the same date, seeking to have the Notices of Appeal filed by the respondents deemed as withdrawn pursuant to rule 85 of the Court of Appeal Rules. 2.The application arises from the judgment delivered by the High Court (Mrima, J.) on 25th February 2021, in a matter in which the applicant sought orders addressing his denial of admission to the Advocates Training Programme (ATP) by the 1st respondent. The 1st respondent rejected his application because his secondary education followed the IGCSE system, requiring an equation from the Kenya National Qualifications Authority, the 2nd respondent herein, which the 2nd respondent declined to provide. 3.Upon hearing the matter, the learned Judge found that the respondents had violated the applicant's constitutional rights to education and fair administrative action by denying him admission based on the equation of his IGCSE qualifications. Particularly, because the applicant had already been admitted to and had graduated from a local university. Consequently, the learned Judge quashed the decisions contained in the 1st respondent’s letter dated 13th January 2020 and the 2nd respondent’s letter dated 8th October 2019, and further issued an order of mandamus compelling the 1st respondent to reconsider the applicant’s admission. 4.Aggrieved by that decision, the 1st and the 2nd respondents lodged Notices of Appeal on 1st March 2021 and 16th March 2021, respectively. The applicant, however, contends that despite these notices, being filed over 5 years ago, and despite the proceedings of the High Court being certified as far back as 16th October 2023, neither respondent has moved to formally institute their appeal by filing a memorandum and record of appeal. 5.Learned counsel for the applicant, Mr. Orwenyo, filed submissions which he highlighted before this Court. Counsel argued that the respondents failed to file their records of appeal despite the High Court proceedings having been certified by 16th October 2023, which delay is inexcusable. Counsel also pointed out a procedural lapse by the respondents in failing to serve on the applicant the letter requesting the proceedings, as required under rule 84(2) of the Court of Appeal Rules, a fact conceded by counsel. Which omission, counsel stated, prevents the respondents from relying on the certificate of delay to justify their inaction. 6.The applicant maintains that the intended appeal is overtaken by events, as the applicant completed the Advocates Training Programme (ATP) and passed the Bar examinations. The applicant also pointed out that the respondent’s application for extension of time was improperly lodged as part of a separate and undetermined application (Civil Application No. 68 of 2022) and is, therefore, not legally before this Court. The applicant relied on the cases of Simon (Suing as the legal representative of the Estate of Sammy Maweu Muthama (Deceased) vs. China Road & Bridge Corp of Kenya (2025) KECA 2105 (KLR), Macharia vs. Registered Trustees, Franciscan Sisters of Immaculate Nyeri [2024] KECA 1057 (KLR), and Igweta & Another vs. Katambi & 2 Others [2025] KECA 457 (KLR) on the strict application of the Court of Appeal Rules. 7.The 1st respondent opposed the application vide the replying affidavit of its Principal Officer, Academic Services, Lawrence Ndirangu, sworn on 4th March 2026. The 1st respondent acknowledges admitting the applicant into the ATP program in compliance with the High Court’s judgment, but avers that it sought a stay of execution, which was granted on 21st February 2022. The deponent attributes the delay to unforeseen personal and administrative challenges, stating that its advocate fell ill, which resulted in the failure to file the record of appeal on time. 8.During the hearing, learned counsel for the 1st respondent, Ms.Mbuthu, highlighted the 1st respondent’s written submissions. Counsel admitted that the letter requesting proceedings was never served on the applicant. She confirmed that the 1st respondent has refused to clear the applicant, specifically because there are pending proceedings in court. Counsel maintained that the subject matter of the appeal is not spent. 9.We have given this application, affidavits, and submissions, as well as authorities cited, due consideration. It is not in dispute that the two notices of appeal were lodged on 1st March 2021 and 16th March 2021 respectively. It is also not in dispute that by virtue of Rule 82(1) of the Court of Appeal Rules 2010, which was the applicable rule when the notices were filed, the record of appeal ought to have been filed within 60 days from the date of certification of proceedings from the High Court on 16th October 2023, hence that being by 15th December 2023, which was not done. It, in fact, had not been instituted at the hearing of this motion, more than five years later. 10.This application seeks to have the Notices of Appeal filed by the respondents deemed as withdrawn. Though the notices were filed on time, the respondents failed to file the appeal within time required under the Court of Appeal Rules. Rule 84 of this Court provides:“(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 subrule (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 subrule (1) unless the appellant’s application for such copy was in writing and a copy of the application was served upon the respondent.3.The period specified in subrule (1) for the institution of appeals shall apply to appeals from superior courts in the exercise of their bankruptcy jurisdiction.” 11.In evaluating the respondents’ failure to act, we must first address the fundamental necessity of procedural discipline within the appellate process. On several occasions, this Court has made pronouncements on the consequences of failing to comply with the timelines prescribed under the Court’s Rules. The position taken by the Court in John Mutai Mwangi & 26 Others vs. Mwenja Ngure & 4 Others [2016] eKLR was that strict timelines:“…is meant to achieve the constitutional, statutory and rule-based objective of ensuring that the Court processes dispense justice in a timely, just, efficient and cost- effective manner.” 12.The rationale for strict adherence to rules of practice and procedure was also explained in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 6 Others [2013] eKLR, where Kiage, J.A stated as follows:“‘‘… I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost- effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain, and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts, for while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is a clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty, and clarity where issues of rules and their application are concerned…’’ 13.Similarly, in Onyango & Another (Suing as the Legal Representatives of the Estate of Japheth Omondi Owino) vs. District & 2 Others [2025] KECA 692 (KLR), this Court quoted Chelashaw vs. Attorney General & Another [2005] 1 EA 33, where the court established that procedural and practice regulations are essential for the effective implementation of the law and the administration of justice, without them, would lead to uncertainty in law and confusion. That enforcement of such rules is imperative was also emphasised by this Court in Onjula Enterprises Ltd vs. Sumaria [1986] KLR 651, where it was held that:“The rules of the court must be adhered to strictly, and if hardship or inconvenience is thereby caused, itwould be easier to seek an amendment to the particular rule. It would be wrong to regard the rules of the court as of no substance. A rule of practice, however technical it may appear, is almost always based on legal principle, and its neglect may easily lead to disregard of the principle involved.” 14.Failure to comply with the timelines set invites consequences. In the case of failure to institute an appeal within the prescribed time, Rule 85 of the Court of Appeal Rules 2022 provides as follows:“Effect of default in instituting appeal:i.If a party who has lodged a notice of appeal fails to institute an appeal within the appointed time, that party shall be deemed to have withdrawn the notice of appeal, and the Court may, on its own motion or on application by any other party, make such order.” 15.On the reasons provided by the 1st respondent for failing to comply, we think that the arguments do not lie. We say so because the application before us was not one for extension of time under rule 4 of the Court of Appeal Rules, which would have been the appropriate application for such explanation or reasons to be proferred. The explanation has no bearing whatsoever to this application. 16.In the end, we find that no record of appeal has been filed for over 5 years. We hereby order that the notices of appeal be, and are hereby struck out. Additionally, rule 85 (2) also provides that the party in default shall be liable for the costs arising from the notice of appeal to any person who had been served with the said notice. 17.For the reasons that we have given, the application succeeds, with costs to the applicant. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY 2026.W. KARANJAJUDGE OF APPEAL.....................................L. NJUGUNAJUDGE OF APPEAL.....................................RADIDO S. OKIYOJUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR