Mathinji v Gatungu & another (Civil Appeal (Application) E230 of 2024) [2026] KECA 655 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out an appeal filed late, confirming that procedural mistakes should not end a case unless they cause real injustice.
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 letter bespeaking certified copies of the proceedings and judgment was served on the applicant
- 2.Whether the record of appeal, filed 60 days after the notice of appeal was lodged, ought to be struck out
Key legal issues
#Whether the letter bespeaking proceedings was served on the applicant
The court believed the process server's uncontradicted sworn statement that the letter was served on the applicant's counsel's office.
The applicant's counsel argued the affidavit of service should have been filed in the High Court with the letter. The court rejected this as misleading, holding there is no requirement to file proof of service of the letter, which was addressed to the registrar and copied to the applicant's advocates. Since no evidence on oath contradicted the process server's statement, the court accepted service as established, and the respondent was entitled to rely on the proviso to rule 84(1) and the certificate of delay.
Whether the record of appeal filed outside the 60-day period under rule 84(1) should be struck out
The application to strike out was dismissed; striking out would be harsh and unjust where no injustice or prejudice was occasioned.
Applying Salat, the court held that striking out is a draconian remedy to be used only as a last resort in the clearest of cases. Deviations from procedure that do not go to jurisdiction, the root of the dispute, or occasion prejudice should not attract striking out. Given the conflict over service resolved in the respondent's favour, the appeal was sustained rather than struck out, consistent with the overriding objective under Article 159 of the Constitution and the Appellate Jurisdiction Act.
Legal principles established
#- There is no requirement to file an acknowledgement or proof of service of the letter bespeaking proceedings together with the letter at the lower court.
- A party who disputes service must adduce evidence on oath to counter the process server's statement on oath; unchallenged sworn evidence of service will be accepted.
- Striking out pleadings is a draconian measure of last resort; procedural infractions that cause no injustice should not invalidate a filing.
Court orders
#- 1.The notice of motion dated 14th January 2025 seeking to strike out the record of appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 86 of the Court of Appeal Rules, 2022
Relief refused
#Striking out the record of appeal with costs to the applicant
The court accepted the process server's sworn evidence that the letter bespeaking proceedings was served, and held that striking out would be harsh and unjust.
Costs
Costs will abide by the outcome of 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.
we find that striking out the appeal is harsh and unjust. In the end, we decline to strike out the record of appeal. The application is dismissed.
The power to strike out pleadings, and in the process deprive a party of the opportunity to present his case has been held over the years to be a draconian measure which ought to be employed only as a last resort and even then only in the clearest of cases
there is no evidence on oath to counter the statement on oath made by the process server. We are therefore inclined to accept the process server's statement on oath as the correct position
The letter was addressed to the registrar and copied to the applicant’s counsel. There is no requirement to file the acknowledgement or proof of service.
Issues in the judgment
#The parties are referred to only as 'the applicant' and 'the respondent'; the respondent's actual name does not appear in the judgment text, and the case title and appeal number are not stated.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mathinji v Gatungu & another (Civil Appeal (Application) E230 of 2024) [2026] KECA 655 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/655/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.