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Court of AppealAllowedCivil Application No. 17 of 2023 (Notice of Motion dated 17th March 2023)

Mwadilo & another v Sagalla Ranchers Limited (Civil Appeal (Application) E003 of 2023) [2026] KECA 931 (KLR)

Court of Appeal
15 May 2026
AMA. K. MurgorKLDr. K. I. LaibutaGNG. W. Ngenye-Macharia
2,629 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out a Record of Appeal because it was served 34 days late, confirming strict appellate deadlines.

What this practically means

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Executive summary

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Sagalla Ranchers Limited sued its former directors, Wilmont Mwadilo and Patrick Mbinga, alleging fraudulent leasing and sale of the company's land, LR 12177/4, to Izera Enterprises. The High Court upheld a preliminary objection and struck out the suit for want of jurisdiction, holding that the land dispute fell within the exclusive jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act. Sagalla Ranchers filed a Notice of Appeal and a Record of Appeal. The directors then moved the Court of Appeal under Rules 44, 64 and 86(b) of the Court of Appeal Rules, 2010, to strike out the Record of Appeal on the grounds that it omitted a certified copy of the order appealed against, contained irregularities in the Certificate of Delay, and was served 34 days after filing, contrary to the seven-day service requirement of Rule 92(1). At the hearing, the applicants abandoned the timeliness ground, leaving two issues: the missing certified order and delayed service. The Court found the omission of the certified order cured because it was included in a Supplementary Record, but held that Rule 92(1) is mandatory and that service 34 days after filing, without any application to enlarge time, rendered the record liable to be struck out under Rule 86. The Court allowed the motion, struck out the Record of Appeal dated 6th December 2022, and awarded costs to the applicants. The court thereby binds lower courts and litigants to strict compliance with appellate service timelines, notwithstanding Article 159's injunction favouring substantive justice, which was urged by the respondent but did not save the record.

Questions the Court framed

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

  1. 1.Whether the failure to include the decree rendered the Record of Appeal incompetent and defective
  2. 2.Whether the delayed service of the Record of Appeal on the Applicants warranted the striking out of the Record of Appeal under Rule 86

Key legal issues

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01

Effect of failure to include a certified decree or order in the Record of Appeal

Holding

The ground fails where the certified order was subsequently included in a Supplementary Record of Appeal.

Reasoning

Rule 89(1) requires the certified decree or order to be included in the record. The Respondent attributed the omission to the Deputy Registrar, and the court found that although the certified order was not attached to the initial record, it was included in a Supplementary Record, which cured the defect. The omission was therefore not fatal to the appeal.

p. 4
02

Whether delayed service of the Record of Appeal under Rule 92(1) justified striking out under Rule 86

Holding

Yes. Service effected 34 days after filing, without any application to enlarge time, exposed the record to being struck out under Rule 86.

Reasoning

The court adopted its prior holding that Rule 92(1) is mandatory. Although the strike-out power is discretionary and fact-specific, the timelines in the Rules are non-negotiable. The Respondent knew of the delay but never sought enlargement of time to serve, leaving the record exposed under Rule 86. The motion was therefore allowed and the record struck out.

p. 5

Legal principles established

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  • Rule 92(1) of the Court of Appeal Rules is mandatory: an appellant must serve the record of appeal before or within seven days of lodging it, failing which the appeal is incompetent and liable to be struck out under Rule 86(b).
  • Failure to serve the record of appeal within the prescribed seven days renders the record liable to be struck out, especially where the appellant has not sought enlargement of time to serve.

Court orders

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  1. 1.The Notice of Motion dated 17th March 2023 is allowed
  2. 2.The Record of Appeal dated 6th December 2022 is struck out
  3. 3.Costs of the application to the Applicants

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
null
Jurisdiction invoked
Rules 44, 64 and 86(b) of the Court of Appeal Rules, 2010

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.

the rule is couched in mandatory terms. An appellant must comply with the provision lest the appeal is rendered incompetent and fall prey to being struck out pursuant to the provisions of rule 86(b).
p. 4Mandatory nature of Rule 92(1) service requirement
It is now settled principle that the power of this Court to strike out an appeal is discretionary, and is exercised based on the peculiar circumstances of each case.
p. 5Discretionary nature of strike-out jurisdiction
The timelines prescribed by Court’s Rules for the taking of various steps in appeals to this Court are expressed in clear and unambiguous terms and are non-negotiable so as to ensure the proper adjudication of appeals.
p. 5Non-negotiability of appellate timelines
In the premises, the Notice of Motion dated 17th March 2023 is merited and is allowed, with the result that the Record of appeal dated 6th December 2022 is hereby struck out with costs to the Applicants. It is so ordered.
p. 5Final orders

Issues in the judgment

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minor

Delivery date printed as 2026, which appears to be an error on the face of the judgment given the chronology of events in 2022–2023.

minor

The signature block describes G. W. Ngenye-Macharia as 'DEPUTY REGISTRAR' with 'JUDGE OF APPEAL' beneath it, an internally inconsistent designation.

minor

Applicants' counsel is described as relying on Rule 92(1) of the Court of Appeal Rules, 2022, while the motion and the court's analysis proceed under the Court of Appeal Rules, 2010.

minor

The Respondent's replying affidavit is sworn by Raphael Lewela Mbinga, whose relationship to the named director Patrick Mbinga is not explained.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mwadilo & another v Sagalla Ranchers Limited (Civil Appeal (Application) E003 of 2023) [2026] KECA 931 (KLR)", Case Analysis (2026). Civil Application No. 17 of 2023 (Notice of Motion dated 17th March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/931/eng@2026-05-15

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