Kimanzi & 2 others v Kimanthi

appeal dated 30th July 2021 intimating her intention to appeal against the whole of the said decision. She also led an application for an injunction under rule 5(2)(b) of this Court’s Rules. In a ruling dated 3rd December 2021, this Court granted the respondent an injunction restraining the applicants from, inter alia, interfering with her quiet possession of the said land parcels. 5. The applicants state that the respondent is yet to le her appeal. In the adavit in support of the application sworn by the 1st applicant, Josiah Malombe Kimanzi, on 2nd June 2023, the applicants contend that despite ling the notice of appeal, the respondent has failed to institute the intended appeal within the sixty (60) days prescribed under the Court of Appeal Rules. They further contend that although typed proceedings were ready for collection as early as 12th January 2022, the respondent took no steps to institute the appeal and continued to enjoy the interim orders issued by this Court pending the intended appeal. 6. The applicants state that they became aware of the delay in instituting the appeal after the period for bringing an application to strike out the notice of appeal had already lapsed. They therefore seek an extension of time to le an application to strike out the notice of appeal out of time. 7. The application is supported by the adavit of Josiah Malombe Kimanzi, the 1st applicant, sworn on 2nd June 2023. Mr. Kimanzi avers that the respondent lodged a notice of appeal on 30th July 2021 but failed to institute the appeal within the time prescribed by this Court’s Rules. He reiterates the applicants’ contentions that typed proceedings had been ready for collection on 12th January 2022, and therefore the respondent had no reasonable basis for failing to institute the appeal within time. He contends, further, that the delay in ling the application to strike out the notice of appeal was occasioned by the applicants’ reasonable belief that the respondent would institute the intended appeal upon receipt of the certied proceedings. 8. The application is opposed by a rather lengthy adavit, comprising some 68 paragraphs, sworn by the respondent on 9th February 2026. The respondent avers that the application dated 2nd June 2023 is incompetent and fatally defective; that the 1st applicant cannot swear an adavit on behalf of the 2nd applicant, Timothy Kimanzi Kiiva, who was her husband and who died on 2nd February 2022; that the delay in ling the appeal was due to the death of her spouse, the 2nd applicant, as well as her son; and that she has since led Kitui Succession Cause No. 6 of 2020 (sic) and a grant was issued to her in November 2025. 9. I note that there is a notice of withdrawal dated 1st August 2023 indicating withdrawal of the application by ‘the estate of Timothy Kimanzi Kiiva’ led by the rm of Odawa & Co. Advocates, the same rm acting for the respondent. There is also an adavit on record sworn by one Irene Katumbo Kimanthi who avers that she is also an administrator of the estate of Timothy Kimanzi Kiiva ‘who died on 2nd February 2023’ which do not address themselves to the application for extension of time to le an application for striking out. 10. The parties led written submissions on the matter. The applicant’s submissions are dated 14th June 2023 while the respondent’s submissions are dated 9th February 2026. 11. I have read the application, the adavits in support and opposition thereto, and the submissions of the parties which I need not rehash as they are essentially a repetition of their averments, the only added element being the provisions of law in support of their respective positions. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1776/eng@2026-09-25 2

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12. Rule 86 provides as follows: A person aected by an appeal may, at any time, either before or after the institution of the appeal, apply to the Court to strike out the notice or the appeal, as the case may be, on the ground— (a) that no appeal lies; or (b) that some essential step in the proceedings has not been taken or has not been taken within the prescribed time: Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days after the date of service of the notice of appeal or record of appeal, as the case may be. (Emphasis added). 13. In considering an application for striking out a notice of appeal in Mae Properties Limited v Kibe & another (Civil Appeal 201 of 2016) [2017] KECA 238 (KLR) (19 October 2017) (Judgment) this Court underscored the importance of compliance with the Court’s Rules in the following terms: “ We have said on numerous occasions that the Rules of Court exist for the purpose of orderly administration of justice before this Court. The timelines appointed for the doing of certain things and taking of certain steps are indispensable to the proper adjudication of the appeals that come before us. The Rules are expressed in clear and unambiguous terms and they command obedience. Failure to comply with the timelines set invites sure consequences.” (Emphasis added). 14. In this case, the applicants seek extension of time to le an application out of time under rule 86. They have not invoked the Court’s jurisdiction to extend time under rule 4. Even had they done so, however, it seems to me to be a bit of an irony that having failed to comply with the rules with respect to the timeline for ling an application to strike out a notice for non-compliance with the rules, the applicants now seek to extend time to do so. In my view, such an application should not be entertained, but it is also somewhat redundant in view of the provisions of rule 85 which provides, with regard to the eect of default in instituting an appeal, that: (1) 15. If a party who has lodged a notice of appeal fails to institute an appeal within the appointed time, that party shall be deemed to have withdrawn the notice of appeal and the Court may, on its own motion or on application by any other party, make such order. (Emphasis added). The provisions of rule 85 set out above provide an inbuild mechanism for situations where a party has failed to le its appeal as required under the Rules. An intended respondent who has not led an application for striking out within the prescribed time need not go through the gymnastics of ling an application to extend time to le an application to strike out. As this Court held in Mae Properties Limited v Kibe & another (supra): “We think that the true meaning and import of the rule is more often than not scarcely appreciated. The rule as framed prescribes the legal consequence for non- institution of an appeal within the 60 days appointed by the Rules of Court. Moreover, the said consequence is couched in mandatory, peremptory terms: the oending party shall be deemed to have https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1776/eng@2026-09-25 3

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withdrawn the appeal. It seems to us that the deeming sets in the moment the appointed time lapses.” 16. Given my view of the matter as set out above, I nd that the application dated 2nd June 2023 is without merit, and it is hereby dismissed. 17. The applicants are at liberty to le an appropriate application upon addressing their mind to the provisions of rule 85 of this Court’s Rules and the jurisprudence of the Court thereon, particularly the decision in Mae Properties Limited cited herein. 18. I make no order as to costs. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. MUMBI NGUGI ..................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1776/eng@2026-09-25 4

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