https://new.kenyalaw.org/akn/ke/judgment/keca/2026/995

Kitayi v Psenjen & 2 others (Civil Application E016 of 2026) [2026] KECA 995 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KECA 995 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Application E016 of 2026 PM Gachoka, WK Korir & L Ndolo, JJA May 22, 2026 Between Rose Naliaka Kitayi Applicant and Loice Chesiken Psenjen 1st Respondent Stephen Kiplagat (Sued as the Personal Representatives of the Estate of Enock M Penjen) 2nd Respondent Victoria Kamule Masinde 3rd Respondent (Being an application seeking the striking out of the Notice of Appeal dated 10th November 2025 lodged against judgment of the Environment and Land Court at Kitale (C.K.Nzili, J) delivered on 5th November, 2025. in ELC Petition 13 of 2017) Ruling 1.Before the Court is a notice of motion dated 17th February 2026 filed under rule 86(b) of the Court of Appeal Rules by the applicant, Rose Naliaka Kitayi. The applicant seeks to strike out the Notice of Appeal dated 10th November 2025 filed by the 3rd respondent, Victoria Kamule Masinde. The basis of the application is that the said Notice of Appeal was served on 4th February 2026, which was outside the seven-day period prescribed under rule 79(1) of the Court of Appeal Rules. The applicant also prays for the costs of the application. 2.The 3rd respondent swore an affidavit on 4th May 2026 in opposition to the motion. She conceded that the Notice of Appeal was served late, but contended that the late service did not go to the root of the validity of the Notice of Appeal. Further, that upon discovering the omission by her process server, she promptly moved for extension of the time for serving the Notice of Appeal, and a ruling was delivered in her favour on 30th April 2026 in Civil Application No. E032 of 2026. Consequently, she argued that the application to strike out the Notice of Appeal had been overtaken by events, as the appellate process had been regularized and sanctioned by the Court. 3.When the application came up for hearing, learned counsel Mr. Bikundo appeared for the applicant. Learned counsel Mr. Ngeiywa represented the 1st and 2nd respondents, while learned counsel Ms. Nabwile was present for the 3rd respondent. Both Mr. Bikundo and Ms. Nabwile relied on their written submissions, while counsel for the 1st and 2nd respondents did not take sides. 4.In urging the applicant’s motion, learned counsel Mr. Bikundo pointed out that rule 79(1) of the Court of Appeal Rules requires an intended appellant to serve copies of the notice of appeal on all persons affected by the appeal within seven days after lodging the notice. Counsel stated that the 3rd respondent lodged her Notice of Appeal on 12th November 2025 but only served it upon the applicant on 4th February 2026, a delay of approximately 3 months. He argued that the delay was without the leave of the court and unexplained. Relying on rule 86(b) and asserting that no appeal exists, the applicant invited the Court to strike out the Notice of Appeal for non-compliance with the prescribed timelines. Counsel further submitted that the application was unopposed, having been duly served upon all respondents on 24th April 2026. He therefore prayed that the application be allowed with costs. 5.The 3rd respondent filed submissions dated 4th May 2026. Counsel submitted that the application has been overtaken by events, and in support of the argument, she cited Amaka Development Limited vs. County Government of Taita Taveta [2024] KECA 446 (KLR), where this Court declined to strike out a notice of appeal after the record of appeal had been filed and a certificate of delay obtained. She relied on South Eastern Kenya University vs. Ukamba Agricultural Institute & Another [2020] eKLR for the proposition that an application to strike out becomes a waste of the Court’s time where the substratum has disappeared. 6.Turning to the question -whether late service of a notice of appeal is fatal, counsel relied on Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR, as cited in Total Kenya Limited vs. Reuben Mulwa Kioko [2018] eKLR, for the proposition that failure to serve the notice of appeal within the prescribed period is not fatal to the appeal, as the purpose of service is merely to alert the parties that the case has not been concluded. Counsel invoked sections 3A and 3B of the Appellate Jurisdiction Act, Cap. 9 and Article 159(2)(d) of the Constitution, arguing that courts are enjoined to administer justice without undue regard to procedural technicalities and additionally relied on Kenya Power & Lighting Company Limited vs. Associated Warehousing Company Limited [2024] KECA 1158 (KLR), to urge that while compliance with timelines is important, the ultimate question is whether justice can still be done without prejudice to the other side. She urged that the application be dismissed with costs and the appeal be allowed to proceed to hearing on its merits. 7.We have carefully considered the application, the replying affidavit, the rival submissions, and the authorities cited, as well as the applicable law. The only issue for determination is whether the Notice of Appeal should be struck out for late service. 8.It is not in dispute that the judgment in Kitale Environment and Land Court Case No. E005 of 2022 (OS) was delivered on 5th November 2025. It is also not a point of contention that the 3rd respondent filed her Notice of Appeal on 12th November 2025, within the prescribed time. It is also not questioned that the Notice of Appeal was served on 4th February 2026, outside the seven-day period stipulated by rule 79(1). The 3rd respondent explained that the delay was occasioned by an oversight on the part of her process server, and that upon discovery, she promptly filed an application under rule 4 for extension of the time for serving the Notice of Appeal. 9.More critically, a member of this bench (Gachoka, J.A.) delivered a ruling on 30th April 2026 in Civil Application No. E032 of 2026, in which he allowed the 3rd respondent’s application for extension of time for filing the record of appeal. The Court directed that the record of appeal be filed and served within fourteen (14) days from the date of that order. In that ruling, the Court expressly found that the reasons for delay had been explained, that the period of delay was not inordinate, and that the error in referring to the judgment date was curable under the oxygen principles and Article 159 of the Constitution. 10.In our view, once this Court exercised its discretion in favour of the 3rd respondent by granting leave to file the Record of Appeal out of time, the substratum of the present application to strike out the Notice of Appeal was extinguished. The Notice of Appeal, which was validly filed in the first instance, though not served on time, has now been regularized by the Court’s order extending time for filing the record of appeal. To strike out the Notice of Appeal at this stage would be an exercise in futility and would go against the clear statutory command of sections 3A and 3B of the Appellate Jurisdiction Act, which require the Court to facilitate the just, expeditious, proportionate and affordable resolution of appeals. 11.The Court has consistently held that striking out a pleading is a draconian remedy that should only be invoked in the clearest of cases where the defect is incurable and goes to jurisdiction. The purpose of service is notification, and once notification has been achieved and no prejudice is demonstrated, the Court ought to lean in favour of sustaining the appeal, more so when the defect has been cured by the offending party taking the requisite steps. In our view, the 3rd respondent demonstrated diligence by promptly seeking and obtaining an extension of time, thereby regularizing her appeal. The ruling of 30th April 2026, having regularized the 3rd respondent’s appeal, there is no longer an irregular Notice of Appeal open for striking out. 12.In light of the foregoing, the motion dated 17th February 2026 is hereby dismissed. The Notice of Appeal dated 10th November 2025 is hereby sustained. 13.In relation to the costs, we take notice that the 3rd respondent was initially at fault. It was, therefore, within the applicant’s right to move the Court. However, as we have already found, the 3rd respondent had regularized the defect by the time the motion came for hearing. We will therefore not award costs to the successful party in this application. Neither will we award the applicant the costs since counsel declined our invitation to mark the application as withdrawn at the hearing of this matter. Consequently, each party shall bear their own costs in regard to the application. DATED AND DELIVERED AT ELDORET THIS 22ND DAY OF MAY 2026.M. GACHOKA C.ARB, FCIARB............................... JUDGE OF APPEALW. KORIR............................... JUDGE OF APPEALL. M. NDOLO............................... JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR