https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1523

Warui & another v HFC Limited & 2 others (Civil Application E239 of 2021) [2026] KECA 1523 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1523 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E239 of 2021 K M'Inoti, EC Mwita & B Ongaya, JJA July 31, 2026 Between Pauline Wangeci Warui 1st Appellant Peter Mathenge Gitonga 2nd Appellant and HFC Limited 1st Respondent Garam Investments Auctioneers 2nd Respondent Keysian Auctioneers 3rd Respondent (Application to strike out the Notice of Appeal dated 2nd July 2021 from the ruling and order of the High Court of Kenya at Nairobi (Okwany, J.) dated 1st July 2021 in HCCC No. E377 of 2019) Ruling 1.Before the Court is the Notice of Motion dated 30th August 2023 taken out by the 1st respondent, HFC Limited, in which it seeks to strike out the notice of appeal dated 2nd July 2021 lodged by the appellants, Pauline Wangeci Warui and Peter Mathenge Gitonga. The 1st respondent also seeks a consequential order vacating orders of injunction issued by this Court on 19th May 2022. 2.The motion is supported by an affidavit sworn on 30th August 2021 by Hedaya Malesi, the 1st respondent’s legal officer, who deposed that on 1st July 2021 the High Court dismissed the appellants’ application for an injunction to stop the respondents from transferring or alienating the property known as House No 8 on LR No. Ngong/Ngong/47118 Karen. 3.On 2nd July 2021, the appellants lodged a notice of appeal on the basis of which they obtained from this Court on 19th May 2022 an order of injunction pending the hearing and determination of the intended appeal. The 1st respondent adds that since lodging the notice of appeal almost five years ago, the appellants are yet to file the record of appeal. 4.In its written submissions dated 26th January 2024, the 1st respondent added that having failed to file the appeal within the prescribed time, the appellants are deemed by rule 85 of the Court of Appeal Rules to have withdrawn their notice of appeal and that the Court may deem such a notice of appeal as withdrawn, even on its own motion. It was also contended that the 1st respondent was suffering grave prejudice in that the appellants continue to enjoy an order of injunction without filing the appeal as required by the Court of Appeal Rules. 5.The 1st respondent relied on the decisions of this Court in Charles Wanjohi Wathuku v. Githinji Ngure & Another [2016] eKLR and John Mutai Mwangi & 26 Others v. Mwenja Ngure & 4 Others [2016] eKLR in support of the proposition that the timelines prescribed by the Rules are intended to ensure timely and efficient dispensation of justice. Also relied upon was the decision in Mae Properties Ltd v. Joseph Kibe & Another [2017] eKLR in support of the argument that the power of the Court to deem a notice of appeal as withdrawn is intended to unclog the judicial system. 6.The appellants opposed the application vide a replying affidavit sworn by the 2nd appellant on 25th September 2023 and submissions dated 11th April 2024. The substance of the response was that the appellants lodged the notice of appeal on 2nd July 2021 and applied for proceedings on 1st July 2021. In paragraph 6 of the replying affidavit, the 2nd appellant deposed as follows:“In reply to paragraphs 11 and 13 of the supporting affidavit, the applicant has failed to acknowledge that unless and until the High Court proceedings are pronounced ready for collection, there is nothing an applicant can do save to write reminders which we have done as recently as on 8th August 2023, but all that has been in vain.” 7.It was further contended that having applied for proceedings, time stopped running until the court invited the parties to collect the typed and certified copies of the proceedings and that, no such invitation had yet come from the court. 8.Those points were reiterated in the appellant’s written submission and it will add no value to rehash them, save to add that the appellants contended that the delay in filing the appeal was not deliberate on their part and relied on the decision in Wilfred Odhiambo Musingo v. Habo Agencies [2003] eKLR for the argument that delay in obtaining a certificate of delay cannot be blamed on a party. They also cited Lake Victoria South Water Board v. Ticho Enterprises Ltd [2021] eKLR in support of the proposition that the Court will not penalise a party who has made diligent effort to obtain proceedings. 9.During the hearing of the application on the Court’s virtual platform, only Mr. Mbogo, learned counsel for the respondents, appeared. There was no appearance by counsel for the appellants, even though they were duly served with the hearing notice. Counsel for the respondents elected to rely on his written submissions, which we have considered alongside those of the appellants. 10.From the record, there is no dispute that the ruling, the subject of the intended appeal, was rendered on 1st July 2021 and the appellants lodged the notice of appeal on 2nd July 2021 within the time prescribed by rule 77(2) of the Court of Appeal Rules. The appellants applied for certified copies of the proceedings on 1st July 2021, which was within 30 days from the date of the decision of the High Court, as is required by the proviso to rule 84 of the Court of Appeal Rules. 11.Under the rules, a party is required to file the appeal within sixty (60) days from the date of the lodging of the notice of appeal.However, where a party has applied for proceedings in the manner provided in the proviso to rule 84, the sixty days start to run when the party has been notified by the Deputy Registrar that certified copies of the proceedings and judgment or ruling are ready for collection. 12.The critical issue raised in this application is whether a party who has applied for certified copies of the proceedings and judgment or ruling is at liberty to sit back and claim that he cannot do anything towards the filing of an appeal until he had heard from the Deputy Registrar. In this case, it is now close to five years since the appellants lodged a notice of appeal and no record of appeal has been filed, ostensibly because the appellants are waiting to hear from the Deputy Registrar. Even after the 1st respondent filed the present application to strike out the notice of appeal, the appellants have still not made any effort to file the record of appeal. 13.As far as we can tell, the proviso to rule 84 was never intended to obliterate the constitutional value and principle vividly expressed in Article 159(2) (b) of the Constitution that justice shall not be delayed. The proviso offers parties a reasonable period beyond sixty days so as to seek and obtain the proceedings without which it is not possible to lodge an appeal. The proviso is informed by the plain reality that sometimes, because of competing requests for proceedings, it is not possible to avail them instantly. But the plain truth is that the proviso did not come to make nonsense of the requirement that an appeal should be filed within sixty days from the date of lodging of the record of appeal, or to offer parties open-ended periods within which to appeal at their leisure and sweet convenience. The proviso to rule 84 is not an end in itself and was not intended to transform the period of sixty days required to file an appeal into an indefinite period, a period of five or ten or twenty years, as the appellants appear to assume. 14.After the application to strike out the notice of appeal was served upon the appellants, they woke up from their two year slumber and wrote a single letter to the Deputy Registrar on 8th August 2023 seeking to be appraised on the proceedings. Thereafter, they went back to slumberland and in their replying affidavit, they have not pointed out to any other effort that they have made to secure the proceedings for purposes of lodging the appeal. 15.We are persuaded that it is not open to a party to apply for proceedings and sit tight and claim, as the appellants do, that there is nothing that they can do because the ball is with the Deputy Registrar. The obligation is on an appellant to lodge an appeal with due dispatch and such party cannot causally transfer responsibility to the Deputy Registrar. In this case, it is plainly obvious that the appellants have been most indolent and have made no serious effort to follow up on the proceedings, because they have in their favour an order of injunction. 16.Taking into account the circumstances of this application, and in particular the period of almost five years that has expired since the lodging of the notice of appeal; the failure by the appellants to file the appeal even after being served with the application to strike out the notice of appeal; the lack of effort by the appellants to follow on the proceedings; and the fact that the appellants have had in their favour an order of injunction which they have enjoyed while disregarding their obligation to file the appeal, we are satisfied that the application to strike out the notice of appeal dated 2nd July 2021 is eminently deserved. 17.In the event, the notice of motion dated 30th August 2023 is hereby allowed with the consequence that the notice of appeal dated 2nd July 2021 is hereby deemed to have been withdrawn. The orders of injunction issued by this Court on 19th May 2022 are hereby vacated. Costs of the application are awarded to the 1st respondent. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.K. M’INOTI...................................JUDGE OF APPEALE. C. MWITA...................................JUDGE OF APPEALB. ONGAYA...................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.