Mitsumi Computer Garage Ltd v Freight in Time Ltd & 4 others (Civil Application E705 & E585 of 2025 (Consolidated)) (13 February 2026) (Reasons) [2026] KECA 246 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a notice of appeal served late, confirming that missing procedural deadlines can destroy an appeal entirely.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was a valid notice of appeal on record, given that the Notice of Appeal dated 24th September 2025 was served outside the seven days prescribed under rule 79(1) of the Court of Appeal Rules, 2022
- 2.Whether Freight In Time Ltd's application for stay of proceedings under rule 5(2)(b) could survive the striking out of the Notice of Appeal
- 3.The question of costs of the two applications
Key legal issues
#Validity of a notice of appeal served outside the seven-day period prescribed by rule 79(1)
The Notice of Appeal, though lodged within time, was incompetent because it was served on the applicant and the 2nd to 5th respondents outside the seven days stipulated in rule 79(1); the 1st respondent therefore had no competent notice of appeal.
The 1st respondent conceded non-service within the prescribed period. The Court relied on Kaduda vs. Douglas, Kali Security and Patrick Kiruja Kithinji to hold that service of the notice of appeal within the timelines in the Rules is mandatory and that non-compliance deprives the document of competence. Blaming the advocate did not excuse the delay, and the rules exist to level the playing ground, not to encumber justice.
Whether counsel's inadvertent mistake and reliance on substantive justice under Article 159 could save the notice of appeal
No. Non-compliance could not be cured by Article 159, and a party who fails to comply with the rules does so at their own peril.
The Court held that an appeal filed out of time is not curable under Article 159, following Patrick Kiruja Kithinji vs. Victor Mugira Marete. The 1st respondent had the alternative of retreating to the procedural framework of the Rules to regularise the notice but did not do so. Rules are harbingers of justice, not an unnecessary burden, and a party ignores them at their own peril.
Consequence of striking out the notice of appeal on the rule 5(2)(b) application for stay of proceedings
Once the notice of appeal was struck out, the stay of proceedings application under rule 5(2)(b) had no foundation and was struck out.
Under rule 5(2)(b) the Court is seized of jurisdiction only once a notice of appeal is filed. Relying on Safaricom Limited vs. Ocean View Beach Hotel Limited and Sawe vs. IEBC, the Court held that a valid notice of appeal is the foundation of the interlocutory jurisdiction; without it, the stay application could not stand and fell with the notice.
Costs of the two applications
Costs followed the event and were awarded to the respondents in attendance in the allowed application.
Although the Court acknowledged the need for empathy, counsel for Freight In Time Ltd, having been alerted to the difficulty, opted to press on and request a reasoned ruling, putting the other parties through an unnecessary hearing. The Court therefore applied the general rule that costs follow the event, awarding costs to Mitsumi Computer Garage Ltd, Tandu Alarms Systems Ltd, and GA Insurance Ltd on Civil Application No. E705 of 2025.
Legal principles established
#- An appellant must serve the notice of appeal on affected parties within seven days of lodgment as required by rule 79(1); failure to do so renders the notice of appeal incompetent.
- A defectively served notice of appeal cannot invoke the Court's jurisdiction, including its interlocutory jurisdiction under rule 5(2)(b); jurisdiction under rule 5(2)(b) arises only upon a valid notice of appeal.
- A party cannot invoke Article 159 of the Constitution to circumvent clear rules of the Court, and enlargement of time cannot be obtained through a replying affidavit without a proper rule 4 application first heard by a single Judge.
Court orders
#- 1.Civil Application No. E705 of 2025 allowed and the Notice of Appeal dated 24th September 2025 struck out
- 2.Civil Application No. E585 of 2025 struck out
- 3.Costs awarded to Mitsumi Computer Garage Ltd, Tandu Alarms Systems Ltd, and GA Insurance Ltd in respect of Civil Application No. E705 of 2025
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi (Milimani)
- Milimani HC COMM No. 367 of 2016
- Jurisdiction invoked
- Inherent interlocutory jurisdiction of the Court of Appeal under rules 34, 79 and 85(1) of the Court of Appeal Rules, 2022
- Consolidated with
- Civil Application No. E585 of 2025
Relief refused
#Freight In Time Ltd's application for stay of proceedings in HC COMM Case No. 367/2016 pending its intended appeal (Civil Application No. E585 of 2025)
The application under rule 5(2)(b) had no foundation once the Notice of Appeal anchoring it was struck out, as the Court's jurisdiction under rule 5(2)(b) arises only upon filing of a notice of appeal
Freight In Time Ltd's invocation of rule 4 to enlarge time for service of the Notice of Appeal by way of a replying affidavit
An application under rule 4 must first be heard and determined by a single Judge; enlargement of time cannot be sought through a replying affidavit without a proper application
Costs
Costs awarded to Mitsumi Computer Garage Ltd, Tandu Alarms Systems Ltd, and GA Insurance Ltd in respect of Civil Application No. E705 of 2025 (the allowed application); costs to the respondents in attendance in the allowed application.
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.
An appellant must comply with the timelines provided in the Rules of the Court lest the documents filed out of time are rendered incompetent and fall prey to being struck out.
Rules are put in place not to encumber justice but to level the playing ground. They should not be seen as an unnecessary burden but as harbingers of justice. A party ignores rules at their own peril.
In our view whether or not an appeal is filed on time goes to the jurisdiction of this Court. It is trite that this Court has jurisdiction to entertain appeals filed within the requisite time and/or appeals filed out of time with leave of the Court. To hold otherwise would upset the established clear principles of institution of an appeal in this Court. Consequently, we find that an appeal filed out of time is not curable under Article 159.
It has been said time without number that in an application under Rule 5(2)(b) what gives the Court the jurisdiction to hear and determine the motion is the filing of the notice of appeal.
After hearing the applications and pursuant to rule 34(1) and (7) of the Court of Appeal Rules, 2022, we gave our decision allowing Civil Application No. E705 of 2025, thus striking out the Notice of Appeal dated 24th September 2025 and Civil Application No. E585 of 2025. We also awarded costs to the respondents in attendance in the allowed application.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mitsumi Computer Garage Ltd v Freight in Time Ltd & 4 others (Civil Application E705 & E585 of 2025 (Consolidated)) (13 February 2026) (Reasons) [2026] KECA 246 (KLR)", Case Analysis (2026). Civil Application E705 & E585 of 2025 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/246/eng@2026-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.