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Court of AppealDismissedCivil Application No. E070 of 2022 (Motion dated 13th February 2024)

Equity Bank (Kenya) Limited v Wanyara (Civil Application E011 of 2024) [2025] KECA 174 (KLR)

Court of Appeal of Kenya
7 February 2025
1,047 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed Equity Bank's bid to kill an appeal, holding that weekends and public holidays don't count when calculating appeal deadlines.

What this practically means

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Executive summary

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This was a Notice of Motion dated 13th February 2024 by Equity Bank (Kenya) Limited, the unsuccessful party in the Employment and Labour Relations Court at Mombasa (M. Mbaru, J.), which on 30th November 2023 awarded Nicholas Kililo Wanyara Kshs.481,205.71 less Kshs.529,111 previously owed, for unfair termination. The applicant moved to strike out the notice of appeal dated 8th December 2023, alleging it was served out of time. A bench of Murgor, Laibuta and Ngenye-Macharia, JJA, delivered a single unanimous ruling at Mombasa on 7th February 2025. The Court held, first, that service on 20th December 2023 was within the 7-day period under rule 79(1) because 12th December 2023 (Jamhuri Day) and the preceding weekend were excluded days under rule 3 of the Court of Appeal Rules, which mandates their exclusion when computing time. Secondly, and independently, the Motion was itself fatally late: the proviso to rule 86 bars a strike-out application brought more than thirty days after service of the notice of appeal, and the application filed on 13th February 2024 exceeded that window. The Court applied its earlier decision in MAE Properties Limited v Joseph Kibe & Another on the indispensability of compliance with the Rules' timelines. The Motion was struck out with costs to the respondent, leaving the notice of appeal intact and the intended appeal to proceed. No decision below was disturbed; the ruling binds lower courts on the computation of excluded days and the thirty-day limitation in rule 86.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent's notice of appeal dated 8th December 2023 was served out of time contrary to rule 79(1) of the Court of Appeal Rules
  2. 2.Whether the applicant's Notice of Motion to strike out the notice of appeal was brought within the 30-day period prescribed by the proviso to rule 86
  3. 3.Whether excluded days (public holidays and weekends) under rule 3 extend the time for service of a notice of appeal

Key legal issues

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01

Timeliness of service of the notice of appeal

Holding

The notice of appeal lodged 11th December 2023 and served 20th December 2023 was served within the 7 days allowed by rule 79(1), since 12th December 2023 was a public holiday and the weekend was excluded under rule 3.

Reasoning

Rule 79(1) requires service before or within seven days of lodging the notice. The 7-day period ran into the public holiday of 12th December 2023 and the preceding weekend, both excluded days under rule 3. Applying the excluded-days computation, service on 20th December 2023 fell within the prescribed period, so the allegation of late service failed.

p. 2
02

Timeliness of the strike-out application

Holding

Independently, the Motion dated 13th February 2024 was incompetent because it was filed more than 30 days after service of the notice of appeal, contrary to the proviso to rule 86.

Reasoning

The proviso to rule 86 bars any application to strike out a notice of appeal brought more than thirty days after the date of service of the notice or record of appeal. Since the notice was served on 20th December 2023, the Motion filed on 13th February 2024 was out of time and could not succeed on any footing.

p. 3

Legal principles established

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  • A notice of appeal served out of time may be struck out under rule 86, but an application to strike out must be brought within 30 days of service of the notice of appeal or record of appeal.
  • In computing time under the Court of Appeal Rules, Sundays and public holidays are excluded days; where the last day falls on an excluded day, the period extends to the next day that is not an excluded day, and an act due on an excluded day is taken in due time if done the next working day.
  • Timelines in the Court of Appeal Rules are mandatory and non-compliance invites sure consequences.

Court orders

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  1. 1.The applicant's Notice of Motion dated 13th February 2024 is struck out
  2. 2.Costs of the application to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
Employment and Labour Relations Court at Mombasa
ELRC Cause No. E070 of 2022
Jurisdiction invoked
Rules 3, 42, 77(1) and 84 (now rules 3, 44, 79(1) and 86) of the Court of Appeal Rules, 2020/2022

Relief refused

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Striking out of the respondent's notice of appeal dated 8th December 2023

The notice was served within 7 days once excluded days under rule 3 were accounted for, and the application was itself out of time under the proviso to rule 86

p. 3

Costs

The applicant's Notice of Motion dated 13th February 2024 is struck out with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we are satisfied that the respondent’s notice of appeal was served within 7 days in compliance with rule 79(1) taking account of the public holiday falling on 12th December 2023 and the weekend preceding the date of service thereof on 20th December 2023
p. 2Service of notice of appeal within rule 79(1) period after excluding public holiday and weekend
Either way, the applicant’s Notice of Motion dated 13th February 2024 is in itself incompetent and is hereby struck out with costs to the respondent. Orders accordingly.
p. 3Final orders striking out the application
The Rules are expressed in clear and unambiguous terms and they command obedience
p. 2Mandatory nature of Court of Appeal timelines

Issues in the judgment

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minor

The judgment inconsistently refers to the party roles: paragraph 3 states the respondent gave the notice of appeal, but the notice of appeal was against the respondent's successful claim and was served on the applicant's counsel, suggesting the applicant (Equity Bank) was the intended appellant.

minor

The court cites '3 judicial authorities' filed by the applicant but names only one authority (MAE Properties) in the ruling.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Equity Bank (Kenya) Limited v Wanyara (Civil Application E011 of 2024) [2025] KECA 174 (KLR)", Case Analysis (2025). Civil Application No. E070 of 2022 (Motion dated 13th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/174/eng@2025-02-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.