Henry v Kithinji (Civil Application E086 of 2024) [2025] KECA 1254 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a notice of appeal served 10 days late, confirming the 7-day service deadline in Rule 79 is mandatory.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a notice of appeal served out of the 7-day period prescribed by rule 79 of the Court of Appeal Rules, without an extension of time, is irregular and defective and liable to be struck out
Key legal issues
#Whether late service of a notice of appeal, without an extension of time, is fatal
Yes - the notice of appeal is irregular and defective and was struck out
Rule 79 is couched in mandatory terms and requires service of the notice of appeal on all persons directly affected before or within 7 days of lodging. The respondent admitted service on 29th August 2024, ten days out of time, and made no application for extension of time. Additionally, the notice was not lodged with the Registrar as required, and the letter bespeaking proceedings was not copied to the applicant, disentitling the respondent from the proviso to rule 84. The notice was therefore irregular and defective.
Legal principles established
#- An intended appellant must serve copies of the notice of appeal on all persons directly affected by the appeal before or within 7 days after lodging the notice; service out of time without an extension of time renders the notice irregular and defective.
- A respondent cannot benefit from the proviso to rule 84 (exclusion of days) where the application for proceedings was not copied to the other side in time.
Court orders
#- 1.Notice of Appeal dated 5th August, 2024 filed on 12th August, 2024 struck out for being irregular and defective
- 2.Costs of the application awarded to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Meru
- Jurisdiction invoked
- Section 3A and 3B of the Appellate Jurisdiction Act and rule 79(1) of the Court of Appeal Rules
Relief refused
#Respondent's implied interest in maintaining the notice of appeal / benefiting from the proviso to rule 84
The letter bespeaking proceedings was not copied to the applicant, so the respondent cannot benefit from the proviso to rule 84, and no application for extension of time to serve the notice was made
Costs
Costs of the application to the applicant (the notice of appeal is 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.
Rule 79 of our rules which is couched in mandatory terms requires an intended appellant to serve copies of notice of appeal on all persons directly afiected by the appeal before or within 7 days after lodging such notice.
We have looked at notice of appeal dated 5th August, 2024. It was not lodged with the Registrar as required.
The respondent has not applied for time-extension and in those premises the notice of appeal is irregular and defective and we strike it out with costs to the applicant.
Issues in the judgment
#The judgment opens by describing the applicant as having succeeded in the High Court appeal, while paragraph 1 also refers to the supporting affidavit as sworn by 'a lawyer, John Muthomi' who appeared as counsel for the applicant, making the deponent's role ambiguous
The judgment contains no case number, and although it records that 'cases cited' were considered, no authority is named anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry v Kithinji (Civil Application E086 of 2024) [2025] KECA 1254 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1254/eng@2025-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.