Masha v RKC & another (Suing thro' mother and next friend Mercy Ndembo Mwapagha) (Civil Appeal (Application) E020 of 2022) [2025] KECA 923 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal filed just three days late, confirming that involving children's interests does not excuse missing appeal deadlines.
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 Notice of Appeal lodged on 22nd November 2021, having been filed after the expiry of the 14-day period under rule 77(2) of the Court of Appeal Rules, is incompetent
- 2.Whether the letter bespeaking proceedings was served within the prescribed time as required under rule 84(1) and (2)
- 3.Whether the involvement of minors' interests justifies declining to strike out the appeal for non-compliance with the Court's mandatory Rules
Key legal issues
#Late lodgement of the Notice of Appeal and its effect on jurisdiction
The Notice of Appeal filed on 22nd November 2021, three days after the 14-day period under rule 77(2) expired on 19th November 2021, was filed out of time and incompetent, ousting the Court's jurisdiction.
Rule 77(2) requires lodgement within 14 days of the decision. Judgment was delivered on 5th November 2021, so time lapsed on 19th November 2021. The respondent's explanation of confusion over which advocates were on record was found disingenuous, and no application for extension of time was made. Late filing without extension of time ousts jurisdiction.
Mandatory nature of the Court of Appeal Rules despite involvement of minors
The Rules, where mandatory, must be complied with; the subject matter involving minors did not justify excusing non-compliance. The MZM v JMM authority was distinguished as dealing with form, not competency.
The Rules inject order into the administration of the Court and facilitate just, efficient and effective administration of justice. Where a rule is mandatory there is no room to bend its letter and spirit. Counsel for the respondent steered clear of the service issue under rule 84, and no proof of service of the letter bespeaking proceedings existed. Substantive-justice arguments could not cure jurisdictional default.
Service of the letter bespeaking proceedings under rule 84(1) and (2)
Failure to serve the letter requesting proceedings within the prescribed time rendered both the letter and the Notice of Appeal incompetent, as delay under the proviso to rule 84(1) could not be computed.
The Rules make service of the letter bespeaking proceedings mandatory within the prescribed timeframe. Without proof of compliance, parties cannot compute the days of delay certified in the Certificate of Delay. The respondent's counsel did not address this issue in submissions, and the Certificate of Delay issued on 31st May 2022 was consequently incompetent.
Legal principles established
#- Where a rule of the Court is couched in mandatory terms, a party has no room to bend its letter and spirit; failure to lodge a Notice of Appeal within the 14 days prescribed by rule 77(2) ousts the Court's jurisdiction over the appeal.
- Where time prescribed by law for doing an act has lapsed, the remedy is an application for extension of time; unexplained late filing cannot be cured by asserting confusion over which firm of advocates was on record.
- Service of a Notice of Appeal cannot be effected before the Notice has been lodged; a claim of earlier service is illogical.
- In the absence of proof of service of the letter bespeaking proceedings within the prescribed timeframe, the days for delay cannot be computed under the proviso to rule 84(1), rendering the Notice of Appeal and letter incompetent.
Court orders
#- 1.The Notice of Motion dated 28th July 2022 is allowed
- 2.The Notice of Appeal lodged on 22nd November 2021 is struck out as incompetent
- 3.The Certificate of Delay issued on 31st May 2022 is struck out as incompetent
- 4.The respondent shall bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- Jurisdiction invoked
- Inherent appellate jurisdiction of the Court of Appeal over its own process under the Court of Appeal Rules (Rules 77, 79 and 84), in respect of an intended appeal from the High Court
Relief refused
#Respondent's plea that the appeal be preserved and set down for hearing on a priority basis because the matter involves children
The court distinguished MZM v JMM, holding that the issues there concerned form, not competency, and that counsel's awareness the matter involved minors should have prompted adherence to the Rules
Costs
The respondent shall bear the costs of this application.
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.
The final orders that commend for us to give are that the Notice of Motion dated 28th July 2022 is hereby allowed. We find that the Notice of Appeal lodged on 22nd November 2021 and the Certificate of Delay issued on 31st May 2022 are both incompetent and are hereby struck out. The respondent shall bear the costs of this application.
Where a rule is couched in mandatory terms, a party has no room for bending its letter and spirit, otherwise there would have been no need of writing it in the first instance.
It then follows that the Notice of Appeal and the Letter requesting for the proceedings are both incompetent for want of filing and service within the prescribed time respectively.
where a law provides for the time within which something ought to be done, if the time lapses, one must seek extension of time
Issues in the judgment
#The judgment inconsistently states the date of delivery of the High Court judgment, which is elsewhere fixed as 5th November 2021
Paragraph numbering in the judgment repeats paragraph 28, appearing twice with different content
The respondent's timeline arithmetic in his replying affidavit is internally inconsistent with the judgment's own finding (14 days from 5th November 2021 lapsed on 19th November 2021, and the Notice of Appeal is dated 18th November 2021 yet lodged 22nd November 2021)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masha v RKC & another (Suing thro' mother and next friend Mercy Ndembo Mwapagha) (Civil Appeal (Application) E020 of 2022) [2025] KECA 923 (KLR)", Case Analysis (2025). Civil Application at the Court of Appeal, Mombasa (Motion dated 28th July 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/923/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.