Ochiely v Limisi & 2 others (Civil Appeal (Application) E258 of 2021) [2025] KECA 819 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an entire appeal because the appellant filed the appeal record late, confirming strict appeal deadlines apply.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application to strike out is competent given that it was not brought within 30 days of service of the Notice of Appeal as required by the proviso to rule 86
- 2.Whether the Memorandum of Appeal and Record of Appeal were filed out of time under rule 84 of the Court of Appeal Rules
- 3.Whether the 1st respondent was entitled to the benefit of the proviso to rule 84(1) despite not serving the letter bespeaking proceedings on the applicant
- 4.From what date the 60-day period for filing the Record of Appeal began to run, having regard to the Certificate of Delay
Key legal issues
#Competence of an out-of-time striking-out application
The application was incompetent in so far as it sought to strike out the Notice of Appeal, because the 30-day window under the proviso to rule 86 had lapsed and the applicant's extension application had been disallowed; however, in so far as it targeted the Memorandum and Record of Appeal filed on 12th May 2021 and served 17th May 2021, the application dated 26th May 2021 was within time and competently before the Court.
Rule 86 permits a person affected by an appeal to apply to strike out the notice or the appeal, but only within 30 days of service of the notice of appeal or the record of appeal. The applicant was served with the Notice of Appeal on 9th March 2020 and did not move within 30 days; his extension application (Civil Application No. E216 of 2020) was declined on 7th May 2021. That ground therefore failed. But the record of appeal was filed on 12th May 2021 and served on 17th May 2021, so the application dated 26th May 2021 was within the 30-day period in respect of the record.
Timeliness of the Record of Appeal and the proviso to rule 84(1)
The Record of Appeal was filed out of time. The 1st respondent did not serve the letter requesting proceedings on the applicant as mandatorily required, so he could not rely on the proviso to exclude the time for preparation of proceedings.
Rule 84(1) requires an appeal to be instituted within 60 days of lodging the Notice of Appeal, with the proviso excluding only time certified as required for preparation and delivery of copies of proceedings, and only where the application for such copy was in writing and served on the respondent. The 1st respondent did not dispute failing to send the request to the applicant, so the proviso did not inure to him and the appeal ought to have been filed around 20th April 2020, not 12th May 2021.
Commencement of the 60-day period and certified versus uncertified proceedings
Time began to run on 2nd March 2021 when the 1st respondent was notified that the uncertified proceedings were ready for collection; the period for preparation and delivery of the Certificate of Delay is not excluded. The Record of Appeal filed 12th May 2021 was out of time.
Under rule 84(2) the excluded period is the time certified as required for preparation and delivery of a copy of the proceedings, not the certified copy. Following Rodgers Abisai, an intending appellant only requires uncertified copies to compile the record of appeal. Once notified that proceedings were ready, it was the 1st respondent's duty to collect them; the delay until 15th March 2021 was of his own making, and the Certificate of Delay preparation time is likewise not excluded.
Consequences of filing an appeal out of time
An appeal, memorandum and record of appeal filed out of time and without leave must be struck out, as the delay bereaves the Court of jurisdiction over the appeal.
The Court applied its consistent jurisprudence that the timelines in the Rules are mandatory and command obedience, and that a record of appeal filed outside the 60-day period without an extension of time under rule 4 is incompetent and amenable only to striking out. Accordingly, the Memorandum of Appeal and the entire Record of Appeal were struck out with costs to the applicant.
Legal principles established
#- An application to strike out a Notice of Appeal or an appeal must be brought within 30 days of service of the Notice of Appeal or Record of Appeal, failing which it is incompetent unless extension of time is granted
- An intending appellant who does not serve the letter bespeaking proceedings on the respondent within 30 days cannot benefit from the proviso to rule 84, and the appeal must be filed within 60 days of the Notice of Appeal
- The excluded time under rule 84(2) is the time required for preparation and delivery of (uncertified) copies of the proceedings, not certified copies; once a party is notified that proceedings are ready, the 60-day period starts running
- A Record of Appeal filed out of time and without leave must be struck out
Court orders
#- 1.Struck out the 1st respondent's Notice of Appeal dated 14th February 2020 (as sought)
- 2.Struck out the 1st respondent's Memorandum of Appeal dated 10th May 2021 together with the entire Record of Appeal filed on 12th May 2021
- 3.Costs of the application to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rules 84, 82(1) and (2) and 87(1) and (2) of the Court of Appeal Rules, 2010 (inherent jurisdiction of the Court over its own records); the underlying appeal lies from the High Court under the Court of Appeal Rules
Relief refused
#Striking out the Notice of Appeal on the ground that it was served out of time
The applicant failed to bring the striking-out application within 30 days of service of the Notice of Appeal, and his application for extension of time to file such application was declined
Costs
Costs of the application granted to the applicant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
An application seeking to strike out a notice of appeal or an appeal must be made within thirty (30) days of service of the notice of appeal or the appeal sought to be struck out. That failure to do so renders such an application fatally defective and liable to be struck out.
…in the absence of a copy of the letter bespeaking copies of proceedings and judgment not having (sic) been sent to the respondent to appeal within 30 days, the benefit of the proviso to rule 81(1) does not inure to the appellant. The record of appeal is also therefore filed out of time without leave.
Once a party is notified that proceedings are ready, it is upon him to make the necessary arrangements to have them collected.
We have said on numerous occasions that the Rules of Court exist for the purpose of orderly administration of justice before this Court. The timelines appointed for the doing of certain things and taking of certain steps are indispensable to the proper adjudication of the appeals that come before us.
A notice of appeal filed out of time bereaves this Court of jurisdiction to entertain the appeal and must sufier only one fate: striking out.
We grant this application and hereby strike out the 1st respondent/appellant’s Memorandum of Appeal dated 10th May 2021 together with the entire Record of Appeal filed herein on 12th May 2021 with costs to the applicant.
Issues in the judgment
#The application is stated to have been lodged on 14th April 2021, but the applicant himself pleads that the prescribed period for filing the Record of Appeal lapsed on 18th May 2020/1st May 2021 and the application is dated 26th May 2021 - an internal inconsistency in the dates pleaded in the grounds
Coram lists D. K. Musinga as President (of the Court of Appeal) but the transcript's signature block does not designate an author; authorship is inferred from the single judgment of the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ochiely v Limisi & 2 others (Civil Appeal (Application) E258 of 2021) [2025] KECA 819 (KLR)", Case Analysis (2025). Civil Application No. E216 of 2020 (as application within the appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/819/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.