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Court of AppealPartially AllowedCivil Application E204 of 2025

Kamau (Administrator of the Estate of Nduro Makau aka Nduku Makau (Deceased) v Parmar (Administrator of the Estate of Nagindas Ramji (Deceased))

Court of Appeal
25 September 2026
1,434 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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The Court of Appeal struck out a land appeal filed nearly six months late, ending the case and leaving the 2024 High Court judgment intact.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Karanja, Achode and Njuguna, JJA) on a Notice of Motion dated 2nd December 2025 by the respondent, brought under rules 84(1), 84(2) and 86 of the Court of Appeal Rules, 2022, seeking to strike out the appellant's record of appeal dated 21st February 2025. The record of appeal was from the judgment of Mbugua J of the Environment and Land Court at Nairobi in ELC No. 468 of 2014, delivered on 11th July 2024, dismissing the respondent's suit and declining injunctive relief to the appellant. The respondent contended that the record was filed and served out of time without leave, that no letter bespeaking proceedings or Certificate of Delay was served or included, and that the certified decree was omitted, rendering the appeal incompetent. The appellant filed no response and did not appear; his separate application for stay of execution dated 9th September 2025 was dismissed for non-appearance under rule 58. The court held that the striking-out application was properly anchored on rule 86 and was filed within thirty days of service of the record. On the merits, the record was lodged approximately 179 days outside the sixty-day period in rule 84(1), with no valid proviso exclusion, no letter bespeaking proceedings and no Certificate of Delay; service of the record some eight months after lodging also breached rule 92(1) without any extension of time. The application was allowed and the record of appeal struck out with costs to the respondent. The substantive appeal is thereby extinguished, and the ELC judgment of 11th July 2024 stands undisturbed.

Questions the Court framed

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

  1. 1.Whether the Record of Appeal was instituted within the time prescribed by Rule 84(1)
  2. 2.Whether the record of appeal should be struck out under Rule 86 for failure to take essential steps within the prescribed time

Key legal issues

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01

Timeliness of the application to strike out

Holding

The application filed on 2nd December 2025, the same date the record was served, was within the thirty-day period prescribed by rule 86.

Reasoning

Rule 86 requires a striking-out application to be brought within thirty days of service of the Notice of Appeal or record of appeal. The record was served on 2nd December 2025 and the application filed the same day, so the requirement was met. The court applied Joyce Bochere Nyamweya on the mandatory nature of the proviso to rule 84.

p. 2
02

Institution of the appeal outside rule 84(1)

Holding

The record of appeal was lodged approximately 179 days outside the sixty-day period, with no valid proviso exclusion, no letter bespeaking proceedings and no Certificate of Delay.

Reasoning

Rule 84(1) requires institution within sixty days of lodging the Notice of Appeal; the proviso excludes the proceedings-preparation period only where the appellant wrote and served a letter bespeaking proceedings within thirty days. The uncontroverted averment was that no such letter was served, and the record contained no Certificate of Delay, so no exclusion applied.

03

Failure to serve the record within rule 92(1)

Holding

Service of the record approximately eight months after lodging, without leave, was a further essential step not taken within the prescribed time, falling within rule 86.

Reasoning

Rule 92(1) requires service of the memorandum and record of appeal before or within seven days after lodging. The record was lodged on 19th March 2025 but served only on 2nd December 2025, and there was no evidence of any order extending time for service, so this independently justified striking out.

p. 3

Legal principles established

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  • An application to strike out a record of appeal under rule 86 must be brought within thirty days of service of the Notice of Appeal or record of appeal, failing which it is fatally defective.
  • Failure to lodge the record of appeal within sixty days under rule 84(1), without a valid proviso exclusion, is an essential step not taken within the prescribed time and renders the record liable to be struck out under rule 86.

Court orders

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  1. 1.The Notice of Motion dated 2nd December 2025 is allowed
  2. 2.The record of appeal dated 21st February 2025 is struck out
  3. 3.Costs of the application to the respondent/applicant

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 at Nairobi
ELC No. 468 of 2014
Jurisdiction invoked
Rules 84(1), 84(2), 86 and 92(1) of the Court of Appeal Rules, 2022

Relief refused

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Appellant's application for stay of execution dated 9th September 2025

Dismissed for non-appearance at plenary hearing under rule 58

p. 2

Costs

Costs of the application to the respondent/applicant

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.

Accordingly, the Notice of Motion dated 2nd December, 2025 is found to be meritorious and is allowed. The record of appeal dated 21st February 2025 is hereby struck out with costs to the respondent/applicant.
p. 3Final orders - striking out of record of appeal
Absent a valid exclusion under the proviso to rule 84(1), the sixty-day period expired on or about 21st September 2024, and the record was, therefore, lodged approximately 179 days outside the prescribed period.
p. 3Computation of time under rule 84(1)
Rule 86 requires such an application to be brought within thirty days of service of the Notice of Appeal or record of appeal, as the case may be.
p. 2Time limit for striking-out applications
This failure constitutes a further essential step not taken within the prescribed time and falls squarely within rule 86. There is no evidence before us of an order granting leave to extend time for service.
p. 3Rule 92(1) service obligation

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, "Kamau (Administrator of the Estate of Nduro Makau aka Nduku Makau (Deceased) v Parmar (Administrator of the Estate of Nagindas Ramji (Deceased))", Case Analysis (2026). Civil Application E204 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1884/eng@2026-09-25

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