Francis Gakuu Gachaga & 2 Others v Elijah Nderitu Gachaga
The bottom line
#Kenya's Court of Appeal struck out an appeal filed late because the appellant never copied his request for court proceedings to the other side.
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 respondent's record of appeal, filed on 2nd August 2022, was filed out of time under Rule 84(1) of the Court of Appeal Rules
- 2.Whether the respondent qualified for the proviso to Rule 84(1) excluding the time taken to prepare certified proceedings
- 3.Whether the appeal should be struck out for want of leave and for being filed out of time
Key legal issues
#Computation of time for filing a record of appeal under Rule 84(1)
The record of appeal was out of time; the proviso excluding time taken to prepare proceedings applies only where the bespeaking letter was copied to the respondent.
Rule 84(1) requires filing within sixty days of the notice of appeal, with the sole exception of time certified as required for preparation and delivery of proceedings. Rule 84(2) conditions reliance on that proviso on copying the bespeaking letter to the respondent. The respondent only made an oral application and never copied the letter, so the exclusion did not apply and the appeal was incompetent.
Legal principles established
#- An appellant cannot rely on the proviso to Rule 84(1) excluding time for preparation of proceedings unless the letter bespeaking the proceedings was copied to the respondent.
- A record of appeal filed out of the sixty-day period under Rule 84(1), without extension of time, is liable to be struck out.
Court orders
#- 1.The record of appeal filed on 2nd August 2022 is struck out
- 2.Costs of the application to the applicants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Murang'a
- ELC Case No. 4 of 2019
- Jurisdiction invoked
- Court of Appeal Rules, Rules 86 and 44; Sections 75 and 76 of the Civil Procedure Act (invoked by applicants)
Relief refused
#Respondent's implicit plea to have the application dismissed and appeal sustained
Respondent did not copy the letter bespeaking proceedings to the applicants, so could not benefit from the proviso to Rule 84(1)
Costs
Costs of the application to the applicants
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.
Provided that where an application for a copy of the proceedings in the superior court has been made in accordance with sub-rule (2) within thirty days, after the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy.
Rule 84(2) states the appellant will not be entitle to rely on the above proviso if he did not copy the letter bespeaking of the proceedings to the respondent.
The record of appeal filed in Court on 2 nd August 2022 was filed out of time without the leave of the Court. It is hereby struck out with costs to the applicants.
Issues in the judgment
#Delivery date appears as 2026, inconsistent with the 2022-2023 chronology of the application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Gakuu Gachaga & 2 Others v Elijah Nderitu Gachaga", Case Analysis (2026). Civil Appeal (Application) No. E083 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1851/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.