Gitunga (Suing as the Legal Representative of Itunga Kiragau alias M’itonga Kiragau) & 6 others v Mbataru & another (Civil Appeal (Application) E143 of 2024) [2025] KECA 1351 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an entire appeal because the appellant failed to serve a routine letter on the other side on time.
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 appellants served the notice of appeal and the letter requesting typed proceedings and judgment
- 2.Whether a certificate of delay ought to have been issued
- 3.Whether the record of appeal was filed and served on time
- 4.Whether the record of appeal as filed should be struck out under Rule 86
- 5.Who should bear the costs of the application and the appeal
Key legal issues
#Whether failure to serve the letter bespeaking proceedings on the respondent disqualifies reliance on the certificate of delay under Rule 84
Yes. Rule 84(2) is mandatory: the appellant's application for a copy of proceedings must be in writing and served on the respondent before the proviso's time exclusion applies. The appellants' failure, whatever the explanation, brought their record of appeal outside the prescribed time and exposed it to striking out under Rule 86.
Rule 84 is explicit and couched in mandatory terms. Following Ali v Grain Industries Limited, an unexplained failure to serve the letter bespeaking proceedings cannot be cured by blaming former counsel; the party should have sought an extension of time for service. Since no such order was obtained, the certificate of delay cannot enlarge time, the 60-day period lapsed, and the essential step in the proceedings was not taken within the prescribed time, satisfying Rule 86.
Whether the substantive-justice invocation of Article 159 can excuse procedural default
No. Procedural rules are the handmaidens of justice and cannot be ignored through an appeal to Article 159 of the Constitution by a party in default.
The court held that counsel who overlooked the rules requiring expediency and good order cannot turn to the Constitution for rescue. The courts have repeatedly stated that regulations and procedures ought not to be ignored, as they are the handmaidens of justice. The proper route was an application for extension of time, which the appellants declined to pursue.
Legal principles established
#- An appellant cannot rely on the proviso to Rule 84(1) excluding time certified by the registrar unless the application for the proceedings copy was in writing and served on the respondent; unexplained failure to serve, with blame shifted to former counsel, renders the record of appeal incompetent
- Where there is a failure to comply with procedural rules, the remedy is to move the court for extension of time; relying on Article 159 to excuse non-compliance is misconceived
Court orders
#- 1.The notice of appeal and record of appeal filed on 2nd August 2024 are struck out under Rule 86 of the Court of Appeal Rules, 2022
- 2.The application is allowed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Meru
- Meru ELC Case No. E003 of 2022
- Jurisdiction invoked
- Rules 84(2) and 86(b) of the Court of Appeal Rules, 2022
Relief refused
#Appellants' plea to overlook the unstamped service of the letter requesting proceedings on substantive-justice grounds
Counsel cannot invoke Article 159 after overlooking mandatory procedural rules; the proper course was to seek extension of time, which they did not do
Costs
The application is allowed 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.
The rule is explicit and couched in mandatory terms.
The appellants failed to comply with Rule 84, never mind the explanation given, which we do not find convincing.
They were not without a solution; they could have moved the court to extend the time within which to file the record of appeal. They chose not to.
In the end, we find that the application is merited, and allow the same with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitunga (Suing as the Legal Representative of Itunga Kiragau alias M’itonga Kiragau) & 6 others v Mbataru & another (Civil Appeal (Application) E143 of 2024) [2025] KECA 1351 (KLR)", Case Analysis (2025). Civil Application No. E143 of 2024 (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1351/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.