Ali v Grain Industries Limited (Civil Application E139 of 2024) [2025] KECA 1840 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal filed four days late, confirming that paying fees is what completes filing, and missing deadlines without promptly seeking leave is fatal.
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 appeal is incompetent on account of the appellant's pending application for review (or correction of arithmetic error) in the ELRC against the same decree
- 2.Whether the Record of Appeal was lodged out of time having regard to the 14-day leave granted on 22nd November 2024 and the requirement to pay prescribed fees and security
Key legal issues
#Whether a pending application in the trial court in respect of the same decree renders the appeal incompetent
No - that question goes to the substance of the appeal and is for the full hearing, since the memorandum of appeal raises additional grounds not shown to be the subject of the review application.
The court declined to strike out the appeal on the review ground alone. It observed that the memorandum of appeal raises grounds beyond the arithmetic error said to underlie the ELRC application, so the overlap could not be established at the interlocutory stage and would be considered, if at all, when the appeal is heard.
Whether the Record of Appeal was lodged out of time despite e-filing on 6th December 2024
Yes. Lodging is complete only when the prescribed fee and security are paid; fees were only paid on 10th December 2024 when the Deputy Registrar re-assessed further fees, four days after the 14-day leave expired.
Rule 84 requires the Memorandum and Record of Appeal to be lodged within 60 days (here, 14 days as limited by leave) together with the prescribed fee and security for costs. The appellant could not pay until approval and re-assessment on 10th December 2024, so filing was complete on that date, outside the granted period. The appellant neither sought extension under Rule 4 nor relief under Paragraph 8(6) promptly, filing such application 58 days after the striking-out application.
Consequence of lodging the record out of time without leave or a timely Paragraph 8(6) application
The Record of Appeal is defective for having been lodged four days out of time and is struck out, with costs to the applicant.
The court emphasised that timelines are indispensable to proper adjudication and the rules command obedience. The appellant had the opportunity to apply under Rule 4 or Paragraph 8(6) of the Practice Directions but took no steps until much later, and did not controvert that the application was filed 58 days after the striking-out application. The defect could not be excused.
Legal principles established
#- An appeal is instituted only when the Memorandum of Appeal and Record of Appeal are lodged within the prescribed period together with the prescribed fee and security for costs; lodging without payment of fees is incomplete filing and, if beyond the period, the record is defective and liable to be struck out.
- Timelines in the Court of Appeal Rules are mandatory and command obedience; a party who fails to file within time must promptly seek extension of time under Rule 4 or relief under Paragraph 8(6) of the Electronic Case Management Practice Directions, and unexplained delay in doing so is fatal.
Court orders
#- 1.Struck out the Memorandum of Appeal and Record of Appeal lodged in Grain Industries Limited vs Ismail Ahmed Ali - Mombasa Court of Appeal Civil Appeal No. E240 of 2024
- 2.Awarded the applicant the costs of the application dated 20th December 2024
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Mombasa
- Cause No. 3 of 2020 (Ismail Ahmed Ali v Grain Industries Limited)
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules 2022 (Rule 84) and the Court of Appeal (Electronic Case Management) Practice Directions 2021, Paragraph 8(6), to strike out an incompetent appeal
Relief refused
#Declaration that the appellant has no right of appeal having pursued review of the same judgment and decree
The court held that the competency of the appeal on the review point goes to the substance of the appeal and should be taken at the hearing of the appeal, if any
Costs
The applicant shall have the costs of the application dated 20th December 2024.
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.
We accordingly strike out the Memorandum of Appeal and Record of Appeal lodged in Grain Industries Limited vs Ismail Ahmed Ali - Mombasa Court of Appeal Civil Appeal No. E240 of 2024.
the timelines for taking of certain steps are indispensable to the proper adjudication of the appeals that come before us, and that the Rules are expressed in clear and unambiguous terms and command obedience
an appeal is instituted by lodging a Memorandum of Appeal and the Record of Appeal in the appropriate registry within sixty (60) days of the date when the Notice of Appeal was lodged, “together with the prescribed fee and security for the costs of the appeal
The applicant shall have the costs of the application dated 20th December 2024.
Issues in the judgment
#The replying affidavit is dated 14th March 2023, which predates the application dated 20th December 2024 it responds to - an apparent dating error within the judgment's account
The applicant's striking-out application is described in the judgment's opening as brought by 'the applicant' but the deponent of the supporting affidavit and later narrative identify Grain Industries Limited as the applicant while Ismail Ahmed Ali is the appellant before the Court, making the party roles in the passage internally inconsistent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ali v Grain Industries Limited (Civil Application E139 of 2024) [2025] KECA 1840 (KLR)", Case Analysis (2025). Mombasa Court of Appeal Civil Appeal No. E240 of 2024 (Notice of Motion dated 20th December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1840/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.