Hassan Barasa Mombasa & another v Shaiwaz Sadrudin Jiwa
The bottom line
#Kenya's Court of Appeal struck out a late-filed appeal record, confirming that Article 159 cannot excuse missed appeal deadlines.
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- 1.whether the Notice of Appeal can be deemed withdrawn
- 2.the legal provisions regarding the days to be excluded in computing time
- 3.whether the Record of Appeal was filed and served out of time
- 4.whether the defects can be cured by Article 159(2)(d) of the Constitution
Key legal issues
#Deemed withdrawal of Notice of Appeal
Prayer refused because the Record of Appeal was subsequently filed
The court applied its established jurisprudence that a Notice of Appeal is deemed withdrawn only where no step in the appeal has been taken since filing. Filing the Record of Appeal, even late, constitutes a step that precludes deemed withdrawal under Rule 85.
Computation of time and excluded days
Christmas recess excluded under Rule 3(b); weekends and public holidays excluded only when the last day falls on them; Civil Procedure Rules inapplicable
Section 1 of the Civil Procedure Act confines Order 50 Rule 4 to the High Court and subordinate courts. Rule 3(b) of the Court of Appeal Rules excludes the Christmas recess (21st December to 13th January). Weekends and public holidays are excluded only where the last day of the period falls on such a day, per Kenya Airports Authority v Bwanamaka.
Whether the Record of Appeal was filed out of time
Filed out of time; the 60 days lapsed by 3rd March 2026 and the record was lodged on 5th March 2026
Time ran from the judgment date of 18th September 2025, excluding the period the registry took to prepare proceedings (19th September to 9th December 2025) and the Christmas recess. The balance of the 60 days expired by 3rd March 2026. A Certificate of Delay only excludes the registry's preparation period and does not restart the 60 days.
Service of the Record of Appeal
Service on 7th April 2026 was out of time under Rule 92; alleged bounced email service unproven
Rule 92(1) requires service within seven days of lodging the record. Service was effected on 7th April 2026, well outside that window, and counsel admitted it. The claim of an earlier attempted service via a Yahoo email was unsupported by any affidavit or email extracts, and procedural rules require proper and effective service within the stipulated time.
Whether Article 159(2)(d) cures the defects
No; filing and serving out of time without leave are fundamental jurisdictional defects
Relying on the Salat decision, the court held that while Article 159 demands justice without undue regard to procedural technicalities, procedural rules must be respected. An out-of-time record filed without extension of time is fundamentally incompetent and cannot be validated by Article 159; the proper course was an extension-of-time application.
Legal principles established
#- A Notice of Appeal can only be deemed withdrawn if no step has been taken since its filing
- The 60-day period for lodging a Record of Appeal runs from the date of the decision, excluding only the registry's preparation period; a Certificate of Delay does not restart the clock
- Order 50 Rule 4 of the Civil Procedure Rules does not apply to the Court of Appeal, which is governed by its own Rules
- Article 159(2)(d) cannot cure the fundamental defect of filing and serving a Record of Appeal out of time without leave
Court orders
#- 1.The prayer to deem the Notice of Appeal withdrawn is refused
- 2.The Record of Appeal dated 3rd March 2026 is struck out
- 3.Costs of the application to the respondent/applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- ELC 1 of 2022
- Jurisdiction invoked
- Rules 84, 85, 86 and 90 of the Court of Appeal Rules, 2022
Relief refused
#Deeming the Notice of Appeal dated 19th September 2025 withdrawn
A subsequent step (filing the Record of Appeal) had been taken, precluding deemed withdrawal
Costs
Costs of the application to the respondent/applicant
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, the Notice of Motion application dated 10th April 2026 is hereby allowed as prayed with regard to the striking out of the Record of Appeal. The Record of Appeal dated 3rd March 2026 is hereby struck out, with costs to the respondent/applicant.
Having been filed out of time, and served out of time, the Record of Appeal is fundamentally incompetent.
A party cannot hide under Article 159 to validate an incompetent appeal.
it is a well settled principle of law that it only operates to exclude the specific period taken by the registry to prepare the proceedings. It does not restart or extend the statutory 60-day period from the date the proceedings are collected
Issues in the judgment
#Salat cited twice with inconsistent citations and party counts
Supporting affidavit deponent's name appears garbled
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hassan Barasa Mombasa & another v Shaiwaz Sadrudin Jiwa", Case Analysis (2026). Civil Appeal (Application) E071 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2061/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.