https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1546

**IN THE COURT OF APPEAL** **AT NAIROBI** **CIVIL APPEAL (APPLICATION) NO. E233 OF 2022** **(CORAM: W. KARANJA, ONG’UDI & NJUGUNA, JJ.A.) BETWEEN** **ROSEJOY NKATHA MUCHIRI APPLICANT** **AND** **FRANK MUCHIRI RESPONDENT** *(Being an application to strike out the appeal against the Judgment and Decree of (M. Odero, J) delivered at Nairobi on 4th March 2022* ***in*** ***HCCC No. 64/2018 (O.S): Rose joy Nkatha Muchiri v Frank Muchiri)*** ***\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\**** **RULING OF THE COURT** 1. The applicant herein has moved this Court through the application dated 17th November 2022 brought pursuant to **Rules 82**, **83** and **84** of the **Court of Appeal Rules, 2010**. She seeks the following orders; 1. ***The appellant’s Notice of Appeal dated 15th*** ***March, 2022 and Memorandum of Appeal dated 20th April, 2022 be struck out in totality in accordance with Rules 82 and 83 of the Court of Appeal Rules, 2010.*** * 1. ***In the alternative to prayer (1) above, Appellant's Notice of Appeal dated 15th March, 2022 and Memorandum of Appeal dated 20th April, 2022 be struck out in totality in accordance with Rule 84 of the Court of Appeal Rules, 2010.*** 2. ***The appellant do pay the costs of this application.*** 1. The application is premised on the grounds on its face as well as the applicant’s affidavit sworn on the same date. She deponed that the respondent filed a Notice of Appeal dated 15th March, 2022 and Memorandum of Appeal dated 20th April, 2022 without serving her or her counsel. She further deponed that she only became aware of the Appeal upon the filing of the replying affidavit dated 9th November, 2022 in High Court Civil Suit No. 64 of 2018 (O.S). 2. She averred that the respondent’s letter dated 10th March 2022 requesting for the typed proceedings was never served or copied to her or her counsel. Also, that the procedure of filing the appeal had not been complied with by the respondent. Thus, it is only fair and just that this Court proceeds to strike out the Appeal. 3. The respondent opposed the application through his replying affidavit sworn by his counsel Mr. Ameyo on 2nd February 2023. He averred that the application should be dismissed in favour of determining the appeal on its substantive merits. He admitted that the Notice of Appeal was not served as a result of unintentional human error and not on professional disregard of the Rules. He added that their focus shifted entirely toward pursuing the Appeal to secure their client’s interests, causing the requirement for service to escape their minds until the applicant filed the instant application. 1. Mr. Ameyo affirmed that the Memorandum of Appeal was duly served upon the applicant via the judiciary’s e-filing portal and he had attached evidence in respect to that. He averred that the delay in the progression of the appeal was attributed to systemic frustrations at the High Court registry, where the case file was frequently reported as missing. That those administrative hurdles had prevented the respondent from obtaining essential documents, such as typed proceedings and a certificate of delay. He added that the parallel enforcement proceedings initiated by the applicant further complicated the process. 2. Finally, learned counsel averred that the mistakes of legal counsel should not be visited upon the client, especially in a case involving significant legal questions regarding contributions toward matrimonial homes. He further averred that procedural technicalities must not negate a meritorious appeal. He urged the Court to allow the appeal to be heard and determined to its logical end. 1. When the application came up for hearing on 11th March 2026, learned counsel Mr. Gathogo appeared for the applicant and there was no appearance for the respondent despite them being served with the hearing notice. He made brief oral highlights of his written submissions dated 10th February 2023 in plenary. 2. In the written submissions, learned counsel for the applicant submitted that the appeal must be struck out due to fundamental procedural non-compliance. That although the application was initially filed under the amended 2010 rules, it has been amended to harmonize with the **Court of Appeal Rules, 2022**, specifically stating that **Rules 84, 85,** and **86** of the current Rules replicate the mandatory requirements of the previous **Rules 82, 83,** and **84**. He argued that the said provisions are central to the administration of substantive justice and that the respondent’s failures cannot be overlooked. 3. Learned counsel asserted that the respondent’s failure to serve the Notice of Appeal and the Memorandum of Appeal was an inexcusable breach of this Court’s procedure. He argued that no substantive reason was given for this failure, as the Judiciary’s e-filing portal and the applicant’s physical and electronic addresses were fully accessible. To support this argument, he cited the decision in **Mistry Premji Ganji (Investments) Limited v. Kenya National Highways Authority [2019] eKLR** , where the court strictly declined to extend time for serving a Notice of Appeal when service had not been conducted appropriately. 1. Learned counsel asserted that the respondent’s failure to serve the letter requesting for typed proceedings was a fatal and incurable defect. That while the letter was dated 10th March 2022, the respondent only sought to pay for proceedings on 2nd November 2022 without copying the same to the applicant as required by law. He further asserted that the respondent’s conduct could not be cured. He placed reliance on the decisions in **Mabel Kibore v. National Oil Corporation of Kenya Limited [2019] eKLR**, **Justus Aloo Ogeka & 6 Others v. Kenya Union of Commercial Food and Allied Workers & 2 Others [2018]** **eKLR.** He urged the Court to allow the application and strike out the appeal in order to uphold the integrity of the Court of Appeal Rules, 2022. 1. In the submissions dated 2nd February 2023, learned counsel for the respondent submitted that he timeously lodged a Notice of Appeal on 10th March 2022 and a Memorandum of Appeal on 20th April, 2022, via the e-filing portal. However, he inadvertently failed to serve the Notice of Appeal on the applicant and as a result of which the current application seeking to strike out the appeal pursuant to **Rules 82, 83,** and **84** of the **Court of Appeal Rules 2010** was filed. 1. Learned Counsel asserted that such a failure is excusable if the Court is satisfied that the circumstances warrant leniency. He placed reliance on the decision in **Kamlesh Mansukhalal Damji Pattni vs. Director of Public Prosecutions & 3 others [2015] eKLR** , where this Court held that justice shall be administered without undue regard to procedural technicalities. Further, that its policy is to determine appeals on their merits and avoid a rigid application of procedural rules that would result in a miscarriage of justice. 1. Learned counsel further submitted that this Court's discretion is guided by **Article 159** of the **Constitution**, which mandates that justice be administered without undue regard to procedural technicalities. He argued that technicalities must take a backseat against substantive rights. He asserted that the context of modern legal practice and the electronic filing system ensured that parties have unfettered access to filed documents. He added that the respondent demonstrated actual possession of the Notice of Appeal by attaching it as an exhibit to their own affidavit. He urged the Court to deem the Notice of Appeal as having been served and decline to strike out the Appeal, ensuring the matter is heard on its merits. 2. We have considered the instant application, the grounds in support thereof, the affidavits sworn by both parties, the submissions of counsel and the law. The applicant seeks to have the Notice of Appeal dated 15th March, 2022 and Memorandum of Appeal dated 20th April, 2022 struck out in totality in accordance with **Rules 82** and **83** of the **Court of Appeal Rules, 2010** or in the alternative, in accordance with **Rule 84** of the **Court of Appeal Rules, 2010**. It is clear that this Court is empowered to strike out a notice of appeal or a record of appeal for want of form, or for failure to comply with the rules of procedure. However, before doing so, the proviso to **Rule 84(**now **Rule 86**) expressly states that the 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. 1. In the instant case, the application to strike out the Notice of Appeal is dated 17th April 2023 and the same was filed after the applicant became aware of the appeal on 9th November, 2022, which was over 8 months after filing of the Notice of appeal on 10th March 2022. The applicant’s claim that she was not served with the same is not disputed by the respondent. Therefore, it is our view that to this extent **Rule 84**(now **Rule 86** of the **Court of Appeal Rules**) cannot be relied upon to strike out the Notice of appeal and Memorandum of Appeal. 2. It is not in dispute that by dint of **Rule 82(1)** of the **Court of Appeal Rules 2010(**now **Rule 84(1)** of the **Court of Appeal Rules, 2022)**, the appeal should have been instituted within sixty (60) days of filing of the Notice of Appeal, but was not. The said **Rule 82** of the **Court of Appeal Rules 2010** which is invoked by the applicant herein, clearly sets out the procedure and timelines for filing an appeal. It provided that for one to rely on the provisio to Rule 82 (2) the copy of the request for proceedings must be served on the respondent. 3. Additionally, it is not in dispute that failure to comply with the timelines set invites consequences under the law. In the case of failure to lodge an Appeal within 60 days after filing of the Notice of appeal, **Rule 83** of the **Court of Appeal Rules 2010** (now **Rule 85** of the **Court of Appeal Rules**, **2022**), which is invoked by the applicant herein speaks to that. 4. In the case of **John Mutai Mwangi & 26 Others vs.** **Mwenja Ngure & 4 Others [2016] KECA 655 (KLR)**, this Court held as follows regarding **Rule 83**: ***Under the rule, the Court deems and orders*** ***that a notice unbacked by institution of an*** ***appeal has been withdrawn. It essentially concludes that the intended appellant has abandoned his intention to appeal notwithstanding that he has not formally withdrawn the notice of appeal under Rule 81. The Court makes the order upon being moved by any party or, significantly, on its own motion. It is a clean-up exercise born by the need for rationality in appellate litigation and practice”.*** 1. This Court in the said case further held as follows; ***“That timeline is strict and 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. The rule recognizes, however, that there could be delays in the typing and availing of the proceedings at the High Court necessary for the preparation of the record of appeal. The proviso to the rule accordingly provides that where an appellant has bespoken the proceedings within thirty days and served the letter upon the respondent, then the time taken to prepare the copy of proceedings, duly certified by the registrar of the High Court, shall be excluded in the computation of the 60-day period. A certificate of delay therefore suffices to exclude any delay beyond the prescribed 60 days”***. 1. In light of the provisions of **Rule 83(**now **Rule 85** of the **Court of Appeal Rules, 2022)** cited above, it is clear that where there is failure to appeal within 60 days, the Court on its own motion or on application by a party can make an order declaring that the Notice of Appeal has been withdrawn. We fully adopt the same as the correct position in law with regard to invocation and application of the said Rule to an application of this nature. 1. In the current application, the record is quite clear that after timeously lodging his Notice of Appeal and Memorandum of Appeal the respondent did not serve the applicant with the same and he did not also file a Record of Appeal within the 60 days prescribed. Whereas his advocates did request for a copy of proceedings timeously on 10th March 2022, he never took any other action to try and follow up on the proceedings. Further, even at the time of the hearing of this application there was no appearance for the respondent and there was no indication given of any effort made to obtain the proceedings. 2. Learned counsel for the respondent in his replying affidavit and submissions asserted that the delay in pursuing this appeal has been occasioned by two main factors: failure by the High Court Registry to issue them with the requisite documents for preparing the Record of Appeal; and the parallel activity on the file at the High Court. He further asserted that mistakes of counsel should not be visited on clients. The applicant in her supporting affidavit deponed that the respondent’s letter dated 10th March 2022 requesting for the typed proceedings was never served or copied to her or her counsel as required by Rule 82 (2) 2010 and now Rule 84 (2) Court of Appeal Rules 2022. This position was not challenged by the respondent. In our view, the respondent’s arguments are best fit for an application for extension of time to file an appeal out of time. The reason given for failure to serve the applicant with the letter dated 10th March 222 is not convincing at all. 1. Looking at the Court record, we note that the respondent’s counsel in an attempt to salvage the appeal sought for extension of time through the application dated 30th March 2023. In the ruling dated 8th March 2024 F. Tuiyott JA in dismissing that prayer, dealt quite extensively with the issue of delay in filing the appeal by the respondent and his advocates. 2. Consequently, we find sufficient basis laid for the invocation and application of **Rule 83** of the **Court of Appeal Rules, 2010 (now Rule 85 of the Court of Appeal Rules, 2022)** in favour of the applicant as no record has been filed in furtherance of the respondent’s initiated appellate process. Having been moved by the applicant pursuant to the said Rule, we hereby deem the Notice of Appeal dated 15th March 2022 as having been withdrawn. 1. Costs of the application shall be borne by the respondent. 2. It is so ordered. **Dated and delivered at Nairobi this 31st day of July, 2026.** **W. KARANJA** **………………..…………. JUDGE OF APPEAL** **H.I. ONG’UDI** **……………….…………… JUDGE OF APPEAL** **L. NJUGUNA** **…………………………. JUDGE OF APPEAL** *I certify that this is the true copy of the original* *signed* ***DEPUTY REGISTRAR***