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Court of AppealDismissed

Kitayi v Psenjen & 2 others (Civil Application E016 of 2026) [2026] KECA 995 (KLR)

Court of Appeal of Kenya
22 May 2026
1,402 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that late service of a notice of appeal is a fixable mistake, not a reason to kill an otherwise valid appeal.

What this practically means

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Executive summary

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This was a notice of motion dated 17th February 2026 brought under rule 86(b) of the Court of Appeal Rules by Rose Naliaka Kitayi seeking to strike out the Notice of Appeal dated 10th November 2025 filed by the 3rd respondent, Victoria Kamule Masinde, on the ground that it was served on 4th February 2026, outside the seven-day period prescribed by rule 79(1). The 3rd respondent conceded late service but contended that the application had been overtaken by events, having obtained an extension of time in Civil Application No. E032 of 2026, in a ruling delivered on 30th April 2026 by Gachoka, J.A., a member of the bench. The only issue for determination was whether the Notice of Appeal should be struck out for late service. The Court found that the notice was validly filed within time and that once it had exercised its discretion to extend time for filing the record of appeal, the substratum of the striking-out application was extinguished. Reiterating that striking out is a draconian remedy reserved for the clearest of cases where the defect is incurable and goes to jurisdiction, and that the purpose of service is mere notification, the Court dismissed the motion and sustained the Notice of Appeal. On costs, the Court noted the 3rd respondent was initially at fault and it was within the applicant's right to move the Court, but declined to award costs to either side, ordering each party to bear their own costs. Counsel for the 1st and 2nd respondents took no side; counsel for the applicant declined an invitation to mark the application as withdrawn.

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 should be struck out for late service

Key legal issues

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01

Whether a Notice of Appeal served outside the seven-day period under rule 79(1) should be struck out under rule 86(b)

Holding

No. The notice was validly filed in time; late service was a curable defect which the court's subsequent order extending time for filing the record of appeal regularized, extinguishing the substratum of the striking-out application.

Reasoning

The notice of appeal was filed within the prescribed time but served approximately three months late. The 3rd respondent promptly sought and obtained an extension of time, and a ruling of 30th April 2026 expressly found the delay explained and not inordinate. Once that discretion was exercised, striking out the notice would be futile and contrary to sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) of the Constitution.

p. 3

Legal principles established

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  • Late service of a notice of appeal is not fatal where the court has extended time and regularized the appeal; striking out is reserved for incurable defects going to jurisdiction.
  • Once extension of time to file the record of appeal is granted, the substratum of an application to strike out the notice of appeal for late service is extinguished.
  • The purpose of service of a notice of appeal is notification; where notification has been achieved and no prejudice is shown, the Court leans in favour of sustaining the appeal.

Court orders

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  1. 1.The motion dated 17th February 2026 is dismissed
  2. 2.The Notice of Appeal dated 10th November 2025 is sustained
  3. 3.Each party shall bear their own costs in regard to the application

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court
Kitale Environment and Land Court Case No. E005 of 2022 (OS)
Jurisdiction invoked
Rule 86(b) of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act, Cap. 9

Relief refused

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Costs of the application to the applicant despite the 3rd respondent's initial fault

The defect had been regularized by the time the motion was heard and counsel declined to mark the application as withdrawn

p. 3

Costs

Each party shall bear their own costs in regard to the application.

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.

In light of the foregoing, the motion dated 17th February 2026 is hereby dismissed. The Notice of Appeal dated 10th November 2025 is hereby sustained.
p. 3Final orders
The Court has consistently held that striking out a pleading is a draconian remedy that should only be invoked in the clearest of cases where the defect is incurable and goes to jurisdiction.
p. 3Striking out as a draconian remedy
once this Court exercised its discretion in favour of the 3rd respondent by granting leave to file the Record of Appeal out of time, the substratum of the present application to strike out the Notice of Appeal was extinguished
p. 3Effect of extension of time on striking-out application

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, "Kitayi v Psenjen & 2 others (Civil Application E016 of 2026) [2026] KECA 995 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/995/eng@2026-05-22

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