Mungai & 3 others (Suing in their capacity as Officials of the Alfajiri Self-Help Group) v Sauti SACCO Ltd & 8 others (Civil Appeal 406 of 2019) [2026] KECA 142 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a record of appeal filed five months late because the appellant never served the letter requesting typed proceedings on the other side.
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 record of appeal filed on 26th August 2019 was lodged out of time and should be struck out
- 2.Whether the appellants were entitled to the proviso to rule 82 excluding the time taken to prepare typed proceedings, given non-service of the letter requesting proceedings on the respondents
- 3.Whether the firm of Henry Oduor John & Co. Advocates was properly on record for the appellants without a notice of change of advocates
Key legal issues
#Whether the record of appeal was lodged out of time
Yes; it was lodged some 5 months and 9 days late and the appellants did not deny or controvert that fact, so it had to be struck out
The notice of appeal was filed timeously on 13th December 2018, so under rule 82(1) the record was due by 6th March 2019 at the latest, accounting for the Christmas recess. It was instead lodged on 26th August 2019. Because the letter bespeaking proceedings was never served on the respondents, the time-typing proviso could not enlarge the period, and the filing was hopeless out of time and without leave.
Whether the proviso to rule 82 applied to exclude the time taken to prepare proceedings
No, because the letter requesting proceedings showed no indication of intended or actual service on the respondents
The letter dated 7th December 2018 was addressed only to the Deputy Registrar with no indication it was intended for service on the respondents, as required by the then rule 82(2) (now rule 84(2)). Although the appellants' advocate asserted an attempted service on 18th February 2019, that was refused and unacknowledged, and there was no other evidence of service. The exemption was therefore unavailable.
Whether the firm of Henry Oduor John & Co. Advocates was properly on record without a notice of change of advocates
The court declined to determine the point because striking out the record rendered the question moot
The applicants had argued, relying on Nicholas Omondi v Rocha Limited, that the record was lodged by a firm irregularly on record. However, since the appeal record was struck out for being out of time, the court found no need to rule on the representation question. The same reasoning applies to the respondents' non-compliance with filing addresses for service.
Legal principles established
#- An appeal filed out of time does not properly invoke the jurisdiction of the Court of Appeal, is incompetent and liable to be struck out
- An appellant may only benefit from the proviso to rule 82 excluding time for preparation of proceedings where the letter requesting proceedings has been served on the respondents
Court orders
#- 1.The application dated 2nd September 2019 seeking to strike out the record of appeal is allowed
- 2.The record of appeal lodged out of time and without leave is struck out
- 3.Costs of the application to the applicants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court (ELC)
- ELC No. 313 of 2008 (Edward Mungai & 3 Others v Sauti SACCO Ltd & 7 Others)
- Jurisdiction invoked
- Inherent jurisdiction over appeals under the Court of Appeal Rules (rules 82, 84(2), 23); striking out an appeal lodged out of time
Relief refused
#The appellants' implied claim to the time-exclusion proviso in rule 82 for the period taken to prepare typed proceedings
The letter requesting proceedings was not served on the respondents as required, so no exclusion of time was available
Costs
The application is allowed with costs to the applicants
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 Rules of court serve a signal purpose of ensuring orderly and fair determination of appeals properly filed and an appeal filed out of time is not one that has properly invoked the court’s jurisdiction. It is incompetent and for striking out.
As there is no other indication of intention to efiect, or actual service of that request upon the respondents, including the applicant herein, the logical conclusion is that the time exclusion for preparation of proceedings is not available to the appellants, and their record stands filed hopelessly out of time and without leave, and must accordingly be struck out.
The upshot is that the application is allowed with costs to the applicants. Order accordingly.
Issues in the judgment
#Internal inconsistency in the date the record of appeal was lodged: the motion grounds say 26th August 2019, the submissions say 22nd August 2019, while the court's reasoning refers to it as lodged on 22nd September 2019
Typographical error in the hearing dates: notice of hearing said to be served on 4th July 2025 for a hearing slated for 28th July 2015
Paragraph numbering in the judgment skips from paragraph 12 to paragraph 14
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mungai & 3 others (Suing in their capacity as Officials of the Alfajiri Self-Help Group) v Sauti SACCO Ltd & 8 others (Civil Appeal 406 of 2019) [2026] KECA 142 (KLR)", Case Analysis (2026). Civil Application in ELC Appeal arising from ELC No. 313 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/142/eng@2026-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.