Mwanzaka & another (Suing on Behalf of the Estate of Mwanzaka Tindi Dzengo (Deceased)) v Dandasi
The bottom line
#Kenya's Court of Appeal dismissed an attempt to strike out a land appeal record because the application was filed one day late and the alleged defects were never proven.
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 Respondent's late filing of the Record of Appeal warrants striking it out under Rule 86
- 2.Whether the Record of Appeal is defective and incompetent under Rule 89
Key legal issues
#Timeliness of the striking-out application under Rule 86
The application, filed 31 days after the Record of Appeal, fell outside the 30-day proviso and was incompetent insofar as it sought striking out.
Rule 86 permits a person affected by an appeal to apply to strike out a notice or record of appeal on the ground that no appeal lies or that an essential step was not taken within the prescribed time. The proviso imposes a strict 30-day limitation from service of the notice or record. The court computed the interval between filing of the Record (9 October 2024) and the application (9 November 2024) as 31 days, so the application was out of time and liable to dismissal.
Alleged defects in the Record of Appeal under Rule 89
The alleged Rule 89 defects were not substantiated; the applicants attached only the cover page and did not point to specific pages or irregularities, so no finding of incompetence could be made.
The applicants alleged absence of a certified decree, improper arrangement of documents and lack of a statement of correctness of pleadings. The court found these allegations were made only in general terms, without identifying pages or attaching the full Record. Without the Record before it, the court could not verify whether the defects existed, and declined to find the Record incompetent.
Legal principles established
#- An application to strike out a notice or record of appeal under Rule 86 must be brought within thirty days of service of the notice or record of appeal; non-compliance renders the application fatally defective.
- A party seeking to strike out a record of appeal for non-compliance with Rule 89 must specifically identify and substantiate the alleged defects, including attaching the record itself.
Court orders
#- 1.The Notice of Motion dated 9th November 2024 is dismissed
- 2.Costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- Mombasa Environment and Land Court Case No. 40 of 2014
- Jurisdiction invoked
- Rules 23, 44, 45, 84, 86 and 89 of the Court of Appeal Rules, 2022
Relief refused
#Striking out of the Respondent's Record of Appeal filed on 9th October 2024
The striking-out application was brought 31 days after service/filing of the Record, outside the 30-day limit in the proviso to Rule 86, rendering it incompetent; and the alleged Rule 89 defects were not substantiated
Deeming the Record of Appeal fatally defective for non-compliance with Rule 89
Applicants did not identify specific defects or attach the Record, so the court could not verify the alleged irregularities
Costs
Costs in the appeal.
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 proviso to the Rule, imposes a strict time limitation by stipulating that an application to strike out a notice of appeal or record of appeal shall not be brought after the expiry of thirty (30) days from the date of service of the impugned notice or record of appeal.
Without the presence of the Record, or a substantiation of the existence of the alleged defects, we are in no position to reach a finding that the Record was incompetent and defective for failing to comply with the requirements of Rule 89.
Having so found as we have, the Notice of Motion dated 9th November 2024 lacks merit and fails, and is hereby dismissed. Costs in the appeal.
Issues in the judgment
#Conflicting statements on whether a Replying Affidavit was filed
Inconsistent date of the Record of Appeal (9th October vs 9th September 2024)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwanzaka & another (Suing on Behalf of the Estate of Mwanzaka Tindi Dzengo (Deceased)) v Dandasi", Case Analysis (2025). Civil Application E124 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2238/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.