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Court of AppealStruck OutNot stated in the judgment (Notice of Motion dated 19th November 2025)

Kaanzo v Inspector General of Police & 4 others (Civil Appeal (Application) E406 of 2022) [2026] KECA 1545 (KLR)

Court of Appeal of Kenya
31 July 2026
1,696 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out a land appeal because the appellant missed mandatory filing and service deadlines, showing strict compliance with appeal rules is essential.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi, composed of Gatembu Kairu, Odunga and Ong'udi Judges of Appeal, allowed an unopposed notice of motion dated 19th November 2025 in which the applicants sought to strike out a pending appeal as incompetent for breach of the Court of Appeal Rules, 2022. The intended appeal lay against a decision of the Nairobi Environment and Land Court in Constitutional Petition No. E004 of 2021, delivered on 25th September 2025, upholding the second applicant's title to L.R. No. 1748, Kiima Kiu/Kalonzoni. The applicants deponed that, although the appellant lodged her Notice of Appeal and Memorandum of Appeal timeously, she never served them on the affected parties, never lodged the Record of Appeal within the sixty days prescribed by Rule 84, never served the Memorandum and Record as Rule 92 requires, and never moved for extension of time under Rule 4. The appellant filed no response and did not appear at the hearing. Reviewing Rules 77, 79(1), 84 and 86, the court held that the timelines for filing appeals are mandatory and not merely directory, adopting the Supreme Court's strict-compliance holding in Salat v IEBC, while reaffirming, per Tome v Attorney General, that the striking-out power is discretionary and must be exercised judiciously. Finding the non-compliance unchallenged and fatal, and the lack of opposition equivalent to concession, the court struck out the appeal and awarded costs to the applicants. The judgment supplies binding authority on mandatory compliance with appellate timelines and on the exercise of the Rule 86 striking-out jurisdiction. The record omits the case caption and party names and contains an internal chronology contradiction concerning when the applicants learned of the appeal.

Questions the Court framed

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

  1. 1.Whether the appellant's appeal should be struck out for being incompetent and for failure to comply with the mandatory provisions of the Court of Appeal Rules, 2022, specifically the failure to serve the Notice of Appeal and Memorandum of Appeal and the failure to lodge the Record of Appeal within the prescribed time.
  2. 2.Whether the timelines prescribed by Rules 77, 79 and 84 of the Court of Appeal Rules, 2022 for filing and serving appellate documents are mandatory or merely directory.
  3. 3.Whether, under Rule 86, an essential step in the proceedings having not been taken or taken out of time, the court should exercise its discretion to strike out the appeal, given the appellant's non-compliance, non-opposition and non-appearance.

Key legal issues

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01

Whether the timelines in the Court of Appeal Rules, 2022 for service of the Notice of Appeal and lodgement of the Record of Appeal are mandatory or directory.

Holding

They are mandatory and not merely directory; failure to comply, particularly concerning preparation and timely filing of a proper Record of Appeal, is fatal to an appeal.

Reasoning

The court set out the procedural scheme: Rule 77 governs the filing of the notice of appeal, Rule 79(1) directs service on affected parties, and Rule 84(1) and (2) require lodgement of the memorandum and record of appeal within sixty days. Adopting the Supreme Court's decision in Salat v IEBC, the court endorsed strict compliance with appellate rules. It found on the record that the appellant lodged her notice and memorandum timeously but never served them and never filed the record of appeal within the sixty days prescribed, the allegations standing wholly uncontroverted.

p. 4
02

Whether an appeal should be struck out under Rule 86 where an essential step in the proceedings has not been taken or has been taken out of time.

Holding

Yes. Rule 86 empowers a person affected by an appeal, at any time before or after institution, to apply to strike out where an essential step has been omitted or taken out of time; on the unchallenged material the court struck the appeal out.

Reasoning

The court reproduced Rule 86, which permits striking out on the ground that no appeal lies or that an essential step has not been taken within the prescribed time, subject to a thirty-day limitation on such applications after service. It found non-service of the notice and memorandum of appeal and failure to lodge the record within sixty days; the appellant never sought extension of time under Rule 4 and did not appear. The court held the non-compliance fatal and going to the foundation of the appeal, and found sufficient basis to strike out.

p. 4
03

Whether the striking-out discretion should be exercised on an unopposed application where the appellant has taken no steps to regularise the appeal.

Holding

The power is discretionary and must be exercised judiciously, but here the total non-participation of the appellant meant the applicants' allegations were conceded or could not be effectively challenged, justifying striking out.

Reasoning

The court acknowledged, citing Tome v Attorney General, that striking out is a draconian remedy resorted to only in plain and outright instances, and that the power is discretionary, exercised on the peculiar circumstances of each case with regard to the extent and impact of the defects. The appellant filed no submissions, appeared neither at case management nor at the hearing despite service, and made no application for extension of time under Rule 4. The court therefore treated the applicants' facts and grounds as conceded and acted on the unchallenged evidence.

p. 4

Legal principles established

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  • The timelines prescribed by the Court of Appeal Rules for lodging and serving appellate documents are mandatory and not merely directory, and failure to comply with them – particularly the preparation and timely filing of a proper Record of Appeal – is fatal to an appeal.
  • A person affected by an appeal may, at any time, apply under Rule 86 of the Court of Appeal Rules, 2022 to strike out the notice or the appeal on the ground that an essential step in the proceedings has not been taken or has not been taken within the prescribed time.
  • The power to strike out an appeal for non-compliance is discretionary, not automatic, and must be exercised judiciously having regard to the extent and impact of the defects and the peculiar circumstances of each case.

Court orders

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  1. 1.The appellant's appeal is struck out.
  2. 2.The application dated 19th November, 2025 is allowed with costs to the applicants.

The bench

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

majority
majority
majority
On appeal from
Nairobi Environment and Land Court (ELC)
Constitutional Petition No. E004 of 2021
Jurisdiction invoked
Court of Appeal Rules, 2022 – the motion was brought under Rules 77, 79, 84, 85, 86 and 92; the striking-out power exercised is that conferred by Rule 86 (with the court's inherent jurisdiction under Rule 80 invoked by counsel)

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.

we find suficient basis laid for striking out the appeal, which we hereby do. The application dated 19th November, 2025 is allowed with costs to the applicants.
p. 4Final orders – appeal struck out; application allowed with costs to the applicants
The timelines for filing appeals in this Court are mandatory and not merely directory.
p. 4Mandatory nature of appellate timelines
failure to comply with these rules, particularly concerning preparation and timely filing of a proper Record of Appeal, is fatal to an appeal.
p. 4Consequences of non-compliance with appellate procedure
There must be strict compliance with the rules of the Court regarding the steps taken in lodging an appeal.
p. 4Strict compliance with court rules – Supreme Court holding in Salat v IEBC adopted
It is now a settled principle that striking out a pleading is a draconian act, which may only be resorted to in plain and outright instances.
p. 4Striking out as a draconian remedy – Tome v Attorney General adopted
while this Court has discretion in determining whether to strike out an appeal for noncompliance, this discretion must be exercised judiciously, considering the extent and impact of the defects.
p. 4Judicious exercise of the striking-out discretion
from the court record it is quite clear that after timeously lodging her Notice of Appeal and Memorandum of Appeal, the appellant/respondent did not serve the applicants with the same and she did not also file a record of appeal within the 60 days prescribed.
p. 4Court's finding of fact on the procedural defaults

Issues in the judgment

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material

The judgment as provided omits the case caption: the parties are referred to throughout only as 'the applicants' and 'the appellant/respondent', no appeal or application number is stated, and no neutral citation appears; the case title, case number and neutral citation could not be captured from the text and are recorded descriptively.

material

Internal chronology contradiction: the 1st applicant deponed that 'the applicants only became aware of the intended appeal on 27th November, 2023 upon being served with a Notice of Change of Advocates. By that time, it was already one year and seven months after filing of the Notice of Appeal.' Yet the judgment elsewhere records that 'the ownership of the subject property, L.R. No. 1748, Kiima Kiu/Kalonzoni, was already conclusively determined in ELC Constitutional Petition No. E004 of 2021, where the Court upheld the 2nd Applicant's title on 25th September, 2025.' A Notice of Appeal against a decision of 25th September 2025 cannot have been filed more than a year and seven months before November 2023; at least one of these dates is erroneous on the face of the judgment.

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, "Kaanzo v Inspector General of Police & 4 others (Civil Appeal (Application) E406 of 2022) [2026] KECA 1545 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 19th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1545/eng@2026-07-31

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