Transnzoia Securities Limited v Stuadte (Civil Application E030 of 2023) [2025] KECA 1048 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a Notice of Appeal because the appellant served it about a month late, well beyond the required seven days.
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 was incompetent because the Respondent's incoming advocate failed to comply with Order 9 Rule 9 of the Civil Procedure Rules on change of advocates
- 2.Whether the Notice of Appeal and request for certified typed proceedings were served out of time under rules 79 and 84 of the Court of Appeal Rules
- 3.Whether the application to strike out was brought within the 30-day window in the proviso to rule 86
Key legal issues
#Applicability of Order 9 Rule 9 CPR to appellate proceedings
The rule has no application; the Court of Appeal exercises original jurisdiction in new proceedings, so no notice of change of advocates was required.
The court held that Order 9 Rule 9 of the Civil Procedure Rules regulates representation in an ongoing or concluded suit in the subordinate court or trial court, but not fresh proceedings on appeal. Since the appeal before the Court of Appeal is a new proceeding, the incoming advocate needed no consent from the outgoing advocate or prior leave. The contention therefore failed.
Late service of the Notice of Appeal under rule 79
Service on 26th March 2023 of a Notice lodged on 13th February 2023 was outside the prescribed 7 days, and no leave to extend time was sought; the application to strike out was merited.
Rule 79 requires service of the Notice of Appeal within 7 days of lodging. The Notice lodged on 13th February 2023 should have been served by 20th February 2023 but was served on 26th March 2023. The Respondent neither explained the delay nor sought extension of time, and the court inferred loss of interest in the appeal. Striking out was accordingly justified.
Timeliness of the strike-out application under the proviso to rule 86
The application, dated 25th April 2023, was within 30 days of service on 26th March 2023 and was therefore properly before the court.
Although the strike-out power is discretionary and exercised cautiously, the proviso to rule 86 imposes a 30-day window from service of the notice of appeal. Service occurred on 26th March 2023 and the motion was dated 25th April 2023, within the window, so the application was competent and the court could exercise its discretion.
Legal principles established
#- Order 9 Rule 9 of the Civil Procedure Rules governs change of advocates in an ongoing or concluded suit in the lower court only, and does not apply to representation in new proceedings before the Court of Appeal.
- The power to strike out a notice of appeal or appeal under rule 86 is discretionary and must be exercised carefully, chiefly where the failure to follow the rules was flagrant, deliberate, frivolous or reckless.
- An application to strike out a notice of appeal or appeal must be brought within thirty days of service of the notice of appeal or record of appeal.
Court orders
#- 1.The Notice of Motion dated 25th April 2023 is allowed
- 2.The Notice of Appeal dated 13th February 2023 and filed on the same date is struck out
- 3.Costs of the application to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Rules 79, 84, 85 and 86 of the Court of Appeal Rules, 2022 (rule 86(b))
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.
Order 9 Rule 9 of the Civil Procedure Rules applies to representation in an ongoing or concluded suit in the lower court, but not on appeal.
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 frivolously or recklessly failed to follow the rules.
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
Accordingly, the Notice of Motion dated 25th April 2023 is merited and is hereby allowed with the result that the Notice of Appeal dated 13th February 2023 and filed on the same date is hereby struck out with costs to the applicant.
Issues in the judgment
#The judgment's opening paragraph cites the motion as brought pursuant to 'rule 79 and 84, 85 and 86 of the Court of Appeal Rules', yet the court reasons that the application is brought under rule 86(b) and that service obligations under rules 79 and 84 fell on the Respondent; the exact rule foundation of the motion is not perfectly consistent in the text.
The Respondent is never named in the judgment; parties are identified only as Applicant and Respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Hirji & another v Chege (Environment and Land Case 430 of 2008) [2026] KEELC 2537 (KLR)[2026] KEELC 2537 (KLR)4 May 2026applied
Cite this brief
#Cite this brief
Caselaw, "Transnzoia Securities Limited v Stuadte (Civil Application E030 of 2023) [2025] KECA 1048 (KLR)", Case Analysis (2025). Notice of Motion dated 25th April 2023 (Court of Appeal, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1048/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.