Nzaro v Karisa (Suing as the Personal Representative of the Late Julius Fondo Karisa) & another (Civil Appeal (Application) E098 of 2023) [2025] KECA 888 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a record of appeal filed months late without a Certificate of Delay or extension of time, ending that appeal.
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 Record of Appeal filed on 11th July 2023 was filed outside the time prescribed by rule 84 of the Court of Appeal Rules, 2022
- 2.Whether the absence of a Certificate of Delay and of an application for extension of time warrants striking out the Record of Appeal
- 3.Whether the striking-out application was brought within the thirty-day window prescribed by the proviso to rule 86
Key legal issues
#Timeliness of filing the Record of Appeal and absence of Certificate of Delay or extension of time
The Record of Appeal filed on 11th July 2023 was out of time; no Certificate of Delay under the proviso to rule 84 was procured and no extension of time was granted, so the record was struck out.
The judgment was delivered on 24th January 2023, the Notice of Appeal was filed on 10th February 2023, and the record was filed on 11th July 2023 - about five months later. The appellant had 60 days to file the record or invoke the proviso to rule 84 with a Certificate of Delay. Having done neither, and having withdrawn rather than pursued an extension application, the appellant took no remedial steps. The striking-out application, dated 25th July 2023, was within the thirty-day window of the proviso to rule 86, so the court exercised its discretion in the applicant's favour.
The time limit and discretionary nature of the striking-out power under rule 86
The court is empowered to strike out a notice or record of appeal for failure to follow the rules, but the power is discretionary, exercised on the circumstances of each case, and any application must be brought within thirty days of service of the notice or record of appeal.
Rule 86 permits a person affected by an appeal to apply to strike out the appeal where an essential step has not been taken or has not been taken within the prescribed time. The proviso imposes a thirty-day limitation from service of the notice or record of appeal. Here the record was served on 14th July 2023 and the motion was dated 25th July 2023, so the application was brought in time. The discretion is guided by the Mukenya Ndunda principle that striking out is for flagrant, deliberate, flippant or reckless breaches, which was satisfied on these facts.
Legal principles established
#- An appellant must file the record of appeal within 60 days of lodging the Notice of Appeal, or rely on the proviso to rule 84 with a Certificate of Delay to explain the delay; failure to do either renders the record liable to be struck out on application.
- The power to strike out an appeal for breach of the procedural rules is discretionary and must be exercised carefully, reserved for flagrant, deliberate, flippant or reckless non-compliance.
- An application to strike out a notice or record of appeal must be brought within thirty days from the date of service of the notice of appeal or record of appeal, as provided by the proviso to rule 86.
Court orders
#- 1.The Notice of Motion dated 25th July 2023 is allowed
- 2.The Record of Appeal filed on 11th July 2023 and served on 14th July 2023 is struck out
- 3.Costs of the application to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Rules 44, 86 as read with rule 84 of the Court of Appeal Rules, 2022
Relief refused
#1st respondent's implicit request to deem the Record of Appeal as properly filed
The record was filed outside the prescribed 60-day period without a Certificate of Delay and without any extension of time; the court found no remedial steps had been taken
Costs
The Record of Appeal was struck out with costs 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.
Accordingly, the Notice of Motion dated 25th July 2023 is merited and is hereby allowed, with the result that the Record of Appeal filed on 11th July 2023 and served on 14th July 2023 in respect of this appeal is hereby struck out with costs to the applicant.
The 1st respondent/appellant was required to file the record within 60 days of lodging the Notice of Appeal, or to apply the proviso to rule 84 to exclude the period for preparation of the proceedings with the aid of a Certificate of Delay to explain the delay in filing the record, all of which the 1st respondent/appellant has failed to do.
It is now settled principle that the power of this Court to strike out an appeal is discretionary, and is exercised based on the peculiar circumstances of each case.
Issues in the judgment
#Paragraph numbering is duplicated: two consecutive paragraphs are both numbered 9, so the internal numbering does not match the sequence of paragraphs
The affidavit record contains conflicting dates for service of the Notice of Appeal: the grounds of the Motion state it was served on 10th February 2023 while the supporting affidavit depones it was filed on 10th February 2023; the court records the Notice as filed on 10th February 2023 in one place and as filed 'on 8th February, 2023' in the applicant's grounds
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nzaro v Karisa (Suing as the Personal Representative of the Late Julius Fondo Karisa) & another (Civil Appeal (Application) E098 of 2023) [2025] KECA 888 (KLR)", Case Analysis (2025). Notice of Motion dated 25th July 2023 (Civil Application, Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/888/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.