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Court of AppealPartially AllowedNot stated in judgment· [2025] KECA 638 (KLR)

Achola v Onyango (Civil Application E041 of 2024) [2025] KECA 638 (KLR)

Court of Appeal of Kenya
4 April 2025
ASAsike-MakhandiaFTF. TuiyottLKL. Kimaru
1,700 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a notice of appeal because the appellant served it over a year late, confirming strict timelines apply.

What this practically means

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Executive summary

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The applicant moved the Court of Appeal at Kisumu under Rules 44, 45, 79(1) & (2) and 85 of the Court of Appeal Rules and Section 3A of the Appellate Jurisdiction Act, seeking to strike out the respondent's notice of appeal dated 1st November, 2022 against a judgment of the Environment and Land Court delivered on 18th October, 2022. The respondent lodged the notice on 2nd November, 2022 but served it on the applicant only on 14th March, 2024 - approximately one year and five months later - when the applicant learned of it through a stay-of-execution application. The respondent conceded the failure to serve within the seven days prescribed by Rule 79, attributing it to late instructions to counsel newly coming on record at the appellate stage without leave of court. The Court held that the timelines in its rules are not amenable to the Article 159 discretion over procedural technicalities, and that where the time for a procedural step lapses, the defaulting party must seek extension of time under Rule 4; the respondent had not done so. Citing its recent decision in Mwawasi v Shako and the Supreme Court's decision in Salat, the Court rejected the submission that absence of prejudice could save the notice. Allowing the application filed within the thirty-day window under Rule 86, the Court struck out the notice of appeal and awarded the applicant costs of the motion. The decision binds subordinate courts and parties to comply strictly with service timelines for notices of appeal.

Key legal issues

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01

Effect of failure to serve a notice of appeal within seven days under Rule 79

Holding

Late service without extension of time renders the notice of appeal liable to be struck out; reasons for delay may only be considered in a Rule 4 extension application.

Reasoning

The respondent lodged the notice on 2nd November, 2022 but served it only on 14th March, 2024, about one year and five months later. The respondent conceded the default but never applied for extension of time. The Court held that while the excuses might have supported a Rule 4 application, they could not cure the default when faced with an application to strike out. Precedent establishes that clear procedural rules must be followed even for a solitary unintentional omission.

p. 3
02

Whether 'no prejudice' submissions can save a defaulting party from striking out

Holding

A defaulting party cannot rely merely on the absence of prejudice to preserve its process; it must promptly take remedial measures.

Reasoning

Citing Mwawasi v Shako, the Court endorsed the principle that parties who fall foul of procedural stipulations must speedily take remedial measures and cannot simply assert that no prejudice was occasioned. The respondent neither sought leave to come on record nor extension of time for service, and the applicant only learned of the appeal when served with a stay application.

p. 3

Legal principles established

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  • A notice of appeal must be served on all persons directly affected within seven days of lodging; where the time for service lapses, the defaulting party must seek extension of time, and failure to do so renders the notice liable to be struck out.
  • The procedural timelines in the Court of Appeal Rules are not subject to the general discretion under Article 159 of the Constitution.

Court orders

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  1. 1.The application is allowed for contravening Rule 79 of the Court of Appeal Rules
  2. 2.The respondent's notice of appeal dated 1st November, 2022 is struck out
  3. 3.The applicant is awarded costs of the motion
On appeal from
Environment and Land Court
Not stated in judgment
Jurisdiction invoked
Rules 44, 45, 79(1) & (2) and 85 of the Court of Appeal Rules and Section 3A of the Appellate Jurisdiction Act (inherent/appellate jurisdiction over appeal processes)

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, "Achola v Onyango (Civil Application E041 of 2024) [2025] KECA 638 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/638/eng@2025-04-04

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