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Court of AppealAllowedCivil Application No E111 of 2023 (Strike Out Application)

HFC Limited v Kinyanjui (Civil Application E103 of 2023) [2025] KECA 893 (KLR)

Court of Appeal
7 March 2025
AMA. K. MurgorKLDr. K. I. LaibutaGNG. W. Ngenye-Macharia
1,321 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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The Court of Appeal struck out a Notice of Appeal served 13 days late, confirming that late service without a successful extension ends an appeal.

What this practically means

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Executive summary

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This is a single-judge application for striking out a Notice of Appeal, determined by a bench of the Court of Appeal at Mombasa under rule 86(b) of the Court of Appeal Rules, 2022. The respondent, Francis Kiarie Kinyanjui, had his suit in Mombasa High Court Civil Suit No 58 of 2019 dismissed by a ruling delivered on 3rd October 2023. He filed a Notice of Appeal dated 11th October 2023 and filed on 17th October 2023, but served it on the applicant, HFC Limited, only on 6th November 2023 — 13 days beyond the 7-day service window expiring 24th October 2023. The applicant moved to strike out the notice. The respondent conceded the delay, attributing it to counsel's indisposition and arguing that counsel's errors should not be visited on the party, and that the intended appeal raised arguable issues. The court noted that Gatembu, JA had, in a ruling dated 9th May 2024, declined to extend time for service of the Notice of Appeal, and that the respondent had not filed a reference to the full bench to challenge that decision. Applying the settled principle that the power to strike out is discretionary and to be exercised carefully, but only where a party flagrantly, deliberately, flippantly or recklessly fails to follow the rules, the court was satisfied that the application was warranted. It allowed the motion, struck out the Notice of Appeal with costs to the applicant, observing that the respondent appeared no longer interested in pursuing the appeal. The court did not disturb the High Court's dismissal of the underlying suit.

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, served 13 days out of time, should be struck out under rule 86(b) of the Court of Appeal Rules, 2022
  2. 2.Whether the application to strike out was brought within the 30-day window in the proviso to rule 86

Key legal issues

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01

Whether a notice of appeal served outside the prescribed 7 days should be struck out under rule 86(b)

Holding

Yes. The Notice of Appeal was served 13 days out of time; the respondent's application to extend time for service had been declined and no reference was filed, so the application to strike out was warranted.

Reasoning

The court noted the concession that service was 13 days late. A single judge of the court had already declined to extend time for service, and the respondent chose not to file a reference to the full bench, indicating disinterest in pursuing the appeal. Striking out followed as the essential step of timely service was not taken within the prescribed time.

p. 3
02

Whether the application was filed within the 30-day proviso to rule 86

Holding

The application, dated 22nd November 2023 following service on 6th November 2023, was within the 30-day window.

Reasoning

Service of the Notice of Appeal occurred on 6th November 2023; the strike-out application dated 22nd November 2023 fell within 30 days of service, satisfying the proviso, which bars applications brought after the expiry of thirty days from the date of service of the notice of appeal or record of appeal.

p. 3

Legal principles established

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  • The power to strike out an appeal or notice of appeal is discretionary and must be exercised carefully, reserved for flagrant, deliberate, flippant or reckless breaches of procedure, based on the circumstances of each case.
  • An application to strike out a notice of appeal or appeal under rule 86 must be brought within thirty days from the date of service of the notice of appeal or record of appeal.

Court orders

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  1. 1.The Notice of Motion dated 22nd November 2023 is allowed
  2. 2.The Notice of Appeal dated 11th October 2023 and filed on 17th October 2023 is struck out
  3. 3.Costs of the application awarded to the applicant

The bench

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

AM
majority
KL
majority
GN
majority
On appeal from
High Court
Mombasa High Court Civil Suit No 58 of 2019
Jurisdiction invoked
Rule 86(b) of the Court of Appeal Rules, 2022 and paragraph 3(f) of the Court of Appeal Practice Directions, 2015

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.

The power to strike out an appeal or notice of appeal on account of failure by an appellant to follow the rules of procedure requires to be exercised carefully and only in cases where it is shown that the party at fault flagrantly or deliberately or flippantly or recklessly failed to follow the rules.
p. 3Discretionary exercise of power to strike out an appeal
an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days from the date of service of the notice of appeal or record of appeal as the case may be.
p. 2Time limit under the proviso to rule 86
Accordingly, the Notice of Motion dated 22nd November 2023 is merited and is hereby allowed, with the result that the Notice of Appeal dated 11th October 2023 and filed on 17th October 2023 in respect of this appeal is hereby struck out with costs to the applicant.
p. 3Final orders

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, "HFC Limited v Kinyanjui (Civil Application E103 of 2023) [2025] KECA 893 (KLR)", Case Analysis (2025). Civil Application No E111 of 2023 (Strike Out Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/893/eng@2025-03-07

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