Kihu v Housing Finance Company (K) Ltd & another (Civil Appeal (Application) E311 of 2025) [2026] KECA 1652 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal filed 16 days late, confirming that sympathy cannot replace a formal extension-of-time application.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal filed outside the 60-day period in Rule 84(1) of the Court of Appeal Rules, without extension of time under Rule 4, is competent.
It is not. The record of appeal filed sixteen days out of time is fatally defective and was struck out under Rule 86; there is no competent appeal before the Court.
Rule 84(1) requires the record of appeal to be filed within sixty days of lodging the notice of appeal, excluding only such time as the Registrar certifies as necessary for preparing the proceedings. The certificate of delay excluded 72 days, so the period expired on 8th April 2025, yet the record was filed on 24th April 2025. Counsel for the Appellant conceded the appeal was out of time and that no Rule 4 application had been made; without one the Court has no discretion to save the appeal, and Rule 86 applies where an essential step was not taken within the prescribed time.
How time is computed under the proviso to Rule 84(1) - from when the proceedings are certified ready for collection or from when the decree is later availed.
Only such time as the Registrar of the Superior Court certifies as necessary for preparation of the proceedings is excluded; the 60 days run from the date the Deputy Registrar notifies the party that the proceedings are ready for collection, not from the later date the decree is availed.
The Court pointed out to counsel that the proviso to Rule 84(1) limits excludable time to what the Registrar certifies as necessary for preparing the proceedings. The Appellant's attempt to reckon time from 28th February 2025, when the decree was availed to his previous counsel, rather than 7th February 2025, when the Deputy Registrar of the ELC notified counsel that the typed proceedings were ready, could not stand. Counsel readily agreed that a strict reading of Rule 84 meant the appeal was out of time, and the amended certificate of delay excluding 93 days could not cure the default.
Whether the Court may exercise its discretion to sustain an appeal filed out of time where no application for extension of time under Rule 4 is before it.
It may not. The Rules of the Court do not permit the saving of an appeal filed out of time unless the party formally moves under Rule 4.
Despite counsel's impassioned plea invoking the death of the Appellant's previous counsel and urging the Court not to drive the Appellant from the seat of justice, the Court held that its discretion cannot be exercised to save an out-of-time appeal in the absence of a formal Rule 4 application. No such application was before the Court. The rules must be applied dispassionately; sympathy cannot substitute for the prescribed procedure.
Whether an application for stay of execution under Rule 5(2)(b) can survive the striking out of the appeal on which it is predicated.
It cannot. Once the appeal is struck out there is no competent appeal, and the stay application falls with it and must itself be struck out.
The Appellant's stay application was expressly tied to the hearing and determination of the appeal. The Court having struck out the appeal as incompetent, the foundation of the stay application disappeared; the Court therefore struck out the application as well, with costs to the 2nd Respondent. The ruling underscores that ancillary or conservatory relief in an appeal is derivative of the appeal's own viability.
Legal principles established
#- An appeal whose Memorandum and Record of Appeal are filed out of time under Rule 84(1) cannot be saved by the Court's discretion unless the party formally applies for extension of time under Rule 4; without such an application there is no competent appeal before the Court.
- In computing the 60-day period for filing a record of appeal, the only time excludable under the proviso to Rule 84(1) is such time as the Registrar of the Superior Court certifies as having been necessary for preparation of the proceedings; the period is not extended by the later availability of the decree.
- An application for stay of execution under Rule 5(2)(b) predicated on an appeal cannot stand once that appeal is struck out.
Court orders
#- 1.The 2nd Respondent's application dated 15th May 2025 seeking to strike out the appeal allowed, with costs to the Applicant.
- 2.The Appellant's appeal struck out, with costs to the Applicant who is the 2nd Respondent in the appeal.
- 3.The Appellant's application dated 29th July 2025 seeking stay of execution struck out, with costs to the 2nd Respondent.
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal exercised through the Court of Appeal Rules - Rules 4, 5(2)(b), 84(1), 86(b), 89(h), 92(1) and 94; no constitutional provision is invoked in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kihu v Housing Finance Company (K) Ltd & another (Civil Appeal (Application) E311 of 2025) [2026] KECA 1652 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1652/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.