Mumias Sugar Company v Tom Ojienda & Associates (Civil Appeal (Application) E304 of 2021) [2026] KECA 1339 (KLR)
The bottom line
#Kenya's Court of Appeal ruled an appeal was filed on time because the waiting period for typed court proceedings doesn't count toward the 60-day filing deadline.
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 Record of Appeal filed 104 days after the Notice of Appeal was filed out of time under Rules 82(1) and 83 of the Court of Appeal Rules
- 2.Whether the 72-day period certified for preparation and delivery of the proceedings should be excluded in computing the 60-day timeline
- 3.Whether the record was fatally defective and incomplete for want of a certificate of delay
- 4.Whether an application to deem a Notice of Appeal withdrawn can properly be made after the Record of Appeal has been filed
Key legal issues
#Exclusion of the certified preparation period in computing the 60-day timeline for filing a Record of Appeal
The 72 days certified by the Deputy Registrar as required to prepare, type and certify the proceedings, plus the period until collection on 5th May 2021, are excluded; the appeal filed on 8th June 2021 was therefore within time, approximately 34 days after collection.
The proviso to Rule 82(2) (now Rule 84(2) of the 2022 Rules) excludes the time certified by the Registrar as required for preparation and delivery of proceedings. The applicant applied for and paid for proceedings on the day of the ruling and copied the request to the respondent, satisfying the service requirement of Rule 84(2). Following Ndirangu & 3 Others v Isosho, the excluded period runs to delivery or notification of readiness, and here the proceedings were collected on 5th May 2021.
Whether rule 85 can be invoked to deem a Notice of Appeal withdrawn after the Record of Appeal has been filed
No. Rule 85, the deeming provision, deals only with a Notice of Appeal, not a Record of Appeal; once an appeal is filed, an aggrieved party must seek to have it struck out.
The court clarified as a matter of procedure that the deeming mechanism under rule 85 attaches only to the Notice of Appeal. Where a record of appeal is already on file and believed incompetent, the appropriate application is under rule 84 for striking out. The mischaracterisation did not however save the application, which failed on substance.
Mandatory nature of filing timelines
Timelines for filing appeals in the Court of Appeal are mandatory, not directory, as affirmed by the Supreme Court in Salat v IEBC.
The court accepted the governing principle of strict compliance with appellate filing rules, quoting the Supreme Court that there must be strict compliance with the rules regarding steps taken in lodging an appeal. The issue was resolved by applying the statutory proviso excluding the certified preparation period, not by relaxing the deadline.
Legal principles established
#- In computing time for filing a Record of Appeal, the excluded period includes not only the time to type the proceedings but also the time when the proceedings were delivered or the party was notified they were ready for collection
- An application to have an appeal deemed withdrawn under rule 85 cannot be made after the Record of Appeal has been filed; the proper remedy at that stage is to seek striking out
- Timelines for filing appeals in the Court of Appeal are mandatory, not directory
Court orders
#- 1.The Notice of Motion dated 21st June 2021 is dismissed
- 2.Costs of the application awarded to the appellant/respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Section 3(1) of the Appellate Jurisdiction Act and Rules 82(1), 83 and 84 of the Court of Appeal Rules
Relief refused
#Deeming the Notice of Appeal dated 24th February 2021 as withdrawn and striking out the Record of Appeal dated 8th June 2021
The appeal was filed within time once the certified 72-day period for preparation and delivery of proceedings was excluded; and the deeming remedy under rule 85 is unavailable once an appeal has been filed
Costs
The application is dismissed with costs to the appellant/respondent.
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.
Consequently, it is our finding that the Notice of Motion dated 21st June 2021 lacks merit and the same is dismissed with costs to the appellant/respondent.
the period to be excluded not only includes the period required to type the proceedings but also includes the time when the proceedings were delivered or when the parties were notified that the same were ready.
an application seeking to have an appeal deemed as withdrawn cannot, strictly speaking, be made after an appeal has been filed.
The timelines for filing appeals in this Court are mandatory and not merely directory.
Issues in the judgment
#The judgment states the appeal was filed on 8th June 2020, whereas elsewhere it is consistently dated 8th June 2021
The replying affidavit of the appellant's officer is sworn on 28th March 2026 in an application concerning a 2021 record, an apparently anomalous date
The applicant's submissions are dated 21st June 2021 yet stated to have been made at a hearing in 2026; similarly the appellant's submissions are dated 1st April 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mumias Sugar Company v Tom Ojienda & Associates (Civil Appeal (Application) E304 of 2021) [2026] KECA 1339 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1339/eng@2026-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.