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Court of AppealDismissedCivil Application (as extracted from Malindi High Court Constitutional Petition No. E006 of 2025)

Lo Coco & 2 others v Republic & 7 others (Civil Appeal (Application) E029 of 2025) [2026] KECA 914 (KLR)

Court of Appeal of Kenya
15 May 2026
AMA. K. MurgorKLDr. K. I. LaibutaGNG. W. Ngenye-Macharia
2,750 words in judgment
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The bottom line

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The Court of Appeal in Mombasa dismissed an attempt to strike out the DPP's appeal because it was filed too early, before the appeal record even existed.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Murgor, Laibuta and Ngenye-Macharia, JJAA) delivered on 15th May 2026 on a Notice of Motion dated 30th May 2025 brought under Rule 86 of the Court of Appeal Rules, 2022. The Applicants, successful petitioners in Malindi High Court Constitutional Petition No. E006 of 2025, sought to strike out an appeal lodged by the Director of Public Prosecutions against two High Court rulings of 25th April 2025 that stayed further investigations into the sale of villas on a plot in Kilifi. The Applicants argued that the Notice of Appeal was incompetent because it named the 'Republic' rather than the DPP, a stranger to the petition, and that the Record of Appeal was lodged out of time. Before the court, the ground on the naming of the appellant was abandoned, as the title had already been amended from 'Republic' to 'Director of Public Prosecutions' by a ruling of Ngenye, JA dated 21st November 2025. On the timeliness question, the court held that the Notice of Appeal was lodged on 28th April 2025 and the 1st Respondent had 60 days, until 27th June 2025, to lodge the Record. The motion was filed before that period lapsed and before the Record was filed and served on 4th August 2025. Relying on the proviso to Rule 86, which requires strike-out applications to be brought after service of the notice or record of appeal and within thirty days, the court held the application premature, unwarranted and unnecessary. The motion was dismissed with costs to the 1st to 8th Respondents. The appeal itself was not determined and awaits hearing on the merits.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Notice of Appeal filed in the name of the 'Republic' instead of the Director of Public Prosecutions was incompetent
  2. 2.Whether the Record of Appeal was filed out of time, thereby rendering the appeal incompetent and liable to be struck out

Key legal issues

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01

Whether the Notice of Appeal was incompetent for naming the 'Republic' instead of the Director of Public Prosecutions as appellant

Holding

The issue did not fall for determination because the title of the Notice of Appeal had already been amended by a Ruling of the Court (Ngenye, JA) dated 21st November 2025, and counsel for the Applicants abandoned the ground

Reasoning

The court noted that following the amendment of the appellant's name from 'Republic' to 'Director of Public Prosecutions', the ground challenging the Notice of Appeal's competence was overtaken by events and became a non-issue. The question of incompetence of the Notice therefore no longer arose for determination.

p. 4
02

Whether the Record of Appeal was filed out of time and the appeal was liable to be struck out

Holding

The application to strike out was premature because it was filed before the Record of Appeal was filed and before the 60-day period for filing it had expired; the motion was dismissed

Reasoning

The Notice of Appeal was lodged on 28th April 2025, giving the 1st Respondent 60 days, to 27th June 2025, to lodge the Record. The motion was filed before that period lapsed and before the Record of Appeal was filed and served on 4th August 2025. Rule 86 requires that any complaint against a record be brought after its service, within 30 days. The motion was therefore unwarranted and unnecessary.

p. 5

Legal principles established

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  • An application to strike out a notice of appeal or an appeal must be brought within thirty days after the date of service of the notice of appeal or record of appeal, and cannot be brought before the record has been served or the prescribed filing period has lapsed
  • The Record of Appeal shall be filed within 60 days after the Notice of Appeal has been lodged

Court orders

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  1. 1.The Notice of Motion dated 30th May 2025 seeking to strike out the 1st Respondent's appeal is dismissed with costs to the 1st to 8th Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AM
majority
KL
majority
GN
majority
On appeal from
High Court of Kenya at Malindi
Constitutional Petition No. E006 of 2025
Jurisdiction invoked
Rule 86 of the Court of Appeal Rules, 2022 (motion to strike out an appeal)

Relief refused

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Striking out the 1st Respondent's Record of Appeal and the appeal

The ground on the invalidity of the Notice of Appeal was abandoned following its amendment; the motion to strike out the Record was premature, having been filed before the Record was filed and before the 60-day period for filing it had lapsed

p. 5

Costs

Dismissed with costs to the 1st to 8th Respondents

Quotable passages

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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 application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days after the date of service of the notice of appeal or record of appeal, as the case may be.
p. 5Rule 86 proviso - time limit for strike-out applications
In sum, the Notice of Motion dated 30th May 2025 is without merit and is hereby dismissed with costs to the 1st to 8th Respondents.
p. 5Final orders - dismissal of the motion
any complaint against or application to strike out the Record filed on 4th August 2025 ought to have been brought after it was filed, and not before.
p. 5Prematurity of strike-out applications

Issues in the judgment

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material

Internal contradiction on the date of filing of the motion: the motion is dated 30th May 2025, but the court states it was filed on 30th April 2025 when computing the 60-day period

minor

The High Court petition is referred to both as No. E006 of 2025 and No. E006 of 2024 in different passages

minor

Incomplete sentence in the court's finding, leaving the subject of what was to be struck out unstated

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Lo Coco & 2 others v Republic & 7 others (Civil Appeal (Application) E029 of 2025) [2026] KECA 914 (KLR)", Case Analysis (2026). Civil Application (as extracted from Malindi High Court Constitutional Petition No. E006 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/914/eng@2026-05-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.