Mombasa Cement Ltd v Speaker of the National Assembly & 4 others

Physical Planning and Speaker of National Assembly and 3 Others, which reference was dismissed with costs in a Ruling delivered by the Environment and Land Court (Kibunja, J.) on 17th January 2024. 2. It was contended that, being dissatised with the Ruling, the 1st Respondent led a Notice of Appeal dated 19th January 2024, which it served upon the Applicant’s advocates on 24th January 2024, and that a request for the court’s Ruling was made on the same day; and that, thereafter, the 1st Respondent failed to request for typed proceedings within 30 days of the Ruling as required by Rule 84 of the Court’s Rules. Subsequently, the 1st Respondent led and served the substantive Appeal on the Applicant on 18th September 2024. It was contended that the record was led outside the prescribed timelines, and that this application, which was brought within 30 days of service of the Record, seeks to strike out the Record of Appeal as it was led out of time without justiable reasons or leave of this Court. 3. It was further contended that, having failed to request for typed proceedings in writing within 30 days of delivery of the Ruling, or served the letter bespeaking the proceedings on the Applicant as required by the Rules, the proviso to Rule 84(1) cannot be relied upon to lodge an appeal outside the 60 days period; and that the period of delay in ling the appeal was about 182 days and that, for this reason, this application is merited. It was further asserted that the 1st Respondent obtained a Certicate of delay on 10th November 2020, which was led as part of the Record of Appeal; that the Certicate of delay is with regard to proceedings in Petition 17 of 2018 and Mombasa Civil Appeal 21 of 2020, but does not relate to the Ruling delivered on 17th January 2024. 4. The application is supported by the adavit sworn on 26th September 2024 by Evans Muigai, the Human Resources Ocer of the Applicant, in which he largely reiterated the grounds on the face of the application. 5. In response, the 1st Respondent led a replying adavit sworn by Samuel Njoroge, CBS, the Clerk of the National Assembly, in which he deposed that Judgment in Mombasa ELC Petition No. 17 of 2018 was delivered on 29th April 2020 in favour of the Applicant, with costs, and that, following taxation of the party and party bill of costs, the 1st Respondent led a reference challenging the taxing ocer’s decision, which reference was dismissed in a Ruling delivered on 17th January 2024; that, being dissatised with the Ruling, the 1st Respondent duly led and served a Notice of Appeal and a letter requesting for typed proceedings, both dated 19th January 2024, and that the typed proceedings were subsequently collected on 19th July 2024 upon notication of their readiness; and that, pursuant to the rules, the time taken by the court to prepare and supply the typed proceedings, being a period of 182 days, ought to be excluded from the computation of time within which the appeal was to be lodged. He deposed that, upon exclusion of the period of delay, the Record of appeal would be considered to be duly led within 60 days from the date of collection of the proceedings, and therefore led within the prescribed timelines. 6. It was further deposed that although the Certicate of Delay was not issued at the time of ling the Record of appeal, it was later issued on 2nd December 2024, whereupon the 1st Respondent led an application for leave to le a supplementary Record of Appeal to include the Certicate, which application is pending determination. Additionally, it was deposed that the 1st Respondent has not abandoned the appeal and has at all times demonstrated readiness and willingness to prosecute it. 7. When the Motion came up for hearing on a virtual platform, learned counsel Mr. Onyony appeared for the Applicant and learned counsel Ms. Akama appeared for the 1st Respondent. There was no appearance for the other parties though served with the hearing notice. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1780/eng@2026-09-25 2

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8. Neither of the parties led written submissions notwithstanding that they were aware that pursuant to an order of this Court, the application was slated to be heard together with Mombasa Civil Appeal No. E182 of 2024, also xed for hearing on the same day. 9. Opting to submit orally instead, counsel for the Applicant largely reiterated the contents of the motion to the eect that the Record of Appeal was led 182 days out of time, and without justiable reasons or leave of this Court. 10. For their part, counsel for the 1st Respondent submitted that they had lodged a request for the proceedings on 19th January 2024 and served a copy on the 1st Respondent; that the Record of Appeal was led on 17th September 2024, but that they had omitted to le a Certicate of Delay; that they had since led a supplementary Record of Appeal which included a Certicate of Delay, and that the failure to include the Certicate was occasioned by the Registry, and therefore the 1st Respondent was not to blame for the omission. Counsel argued that, by virtue of having lodged a Certicate of Delay, albeit belatedly, the time taken to prepare and supply the typed proceedings, being a period of 182 days, when excluded from the computation of time within which the appeal was required to be lodged would render the Record as having been duly led within the prescribed timelines. 12. Having considered the application, the grounds upon which it is premised, the replying adavit, the rival submissions by learned counsel, the authorities cited and the applicable law, the principal issue for determination is whether the Applicant has established sucient grounds to warrant the striking out of the Notice and the Record of Appeal. The application is principally anchored on Rules 84 and 86 of the Rules of this Court. Rule 84 provides: “ Subject to rule 115, an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice of appeal was lodged— a. a memorandum of appeal, in quadruplicate; b. record of appeal, in quadruplicate; c. the prescribed fee; and d. security for the costs of the appeal: 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 of 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 certied by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy. (2) An appellant shall not be entitled to rely on the proviso to sub-rule (1) unless the application for such copy was in writing and a copy thereof served upon the respondent.” 13. This Court in the case of Mae Properties Limited vs Joseph Kibe [2017] eKLR underscored the importance of compliance with procedural timelines and stated: “ 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 for the doing of certain things and taking of certain steps are indispensable to the proper adjudication of the appeals that come https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1780/eng@2026-09-25 3

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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.” 14. Applying the foregoing provisions to the instant application, the ruling sought to be appealed from was delivered on 17th January 2024. The 1st Respondent lodged the Notice of Appeal and the letter bespeaking proceedings on 19th January 2024. The typed proceedings were supplied on 19th July 2024, after which the Record of Appeal was led on 17th September 2024 and served on the Applicant on 18th September 2024, giving rise to a delay of 182 days. Rule 86 further species: “ 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.” In the case of Mukenya Ndunda vs. Crater Automobiles Limited [2015] eKLR, this Court observed: “ The power to strike out an appeal or notice of appeal on account of failure by an appellant to follow the rules of procedure requires to be exercised carefully and only in cases where it is shown that the party at fault agrantly or deliberately or ippantly or recklessly failed to follow the rules.” 15. In eect, Rule 86 clearly sets out the basis upon which an application for striking out a Notice or Record of Appeal may be brought. The Rule provides that a person aected by an appeal may, at any time before or after the institution of the appeal, apply to the Court to strike out the notice or the appeal on the grounds that no appeal lies, or that some essential step in the proceedings has not been taken, or has not been taken within the prescribed time. Additionally, the proviso to the Rule imposes a further strict time limitation by stipulating that an application to strike out a notice of appeal or record of appeal shall not be brought after the expiry of thirty (30) days from the date of service of the impugned notice or record of appeal. 16. The mandatory nature of this thirty-day limitation has been the subject of consistent interpretation by the Court. In the case of Salama Beach Hotel Limited & 4 others vs Kenyariri & Associates Advocates & 4 others [2016] eKLR, the Court underscored the necessity of strict compliance with the proviso. Citing its earlier decision in Joyce Bochere Nyamweya vs Jemima Nyaboke Nyamweya & another [2016] eKLR, this Court reiterated that parties are bound by the timelines prescribed in the Rule, and particularly that an application to strike out a notice 17. of appeal or an appeal must be brought within 30 days of service of the notice or the record. Failure to comply would render such an application fatally defective and liable to be struck out. 18. In view of the above, we must rst ascertain whether the application has been brought within the 30 days’ timeframe specied by Rule 86 so as to warrant the striking out of the Record. The Record of Appeal was led on 17th September 2024 and served on 18th September 2024. This application https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1780/eng@2026-09-25 4

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was brought on the 27th September 2024. A computation of the intervening period reveals that the Applicant’s application was brought within the 30 days period specied by Rule 86, with the eect that the application, as lodged, is competent. 19. That said, the Applicant’s complaint is that the 1st Respondent’s Record was lodged well after the 60 days period prescribed by the rules had lapsed, which has resulted in a misstep in the ling of the appeal; that, further, no steps were taken seeking leave of the Court to enlarge the time for ling of the Record. 20. No doubt, the pleadings disclose that the 1st Respondent led and served the Record on the Applicant way beyond the stipulated period of 60 days. And, although the 1st Respondent was of the view that a Certicate of Delay made adequate provision for the late ling of the Record, it becomes clear that they did not at any time seek to regularize this infraction by complying with the rules and seek leave of the Court to enlarge time to le and serve the Record out of time. This grave omission has caused the Record of Appeal to fall victim to the strictures of Rule 86 of this Courts’ Rules, thereby rendering it liable to be struck out. 21. In the premises, the Notice of Motion dated 27th September 2021 is merited and is hereby allowed, with the result that the Record of Appeal led on 17th September 2024 and served on 18th September 2024 is hereby struck out with costs to the Applicant. It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF SEPTEMBER, 2026. A. K. MURGOR …………...…............. JUDGE OF APPEAL DR. K. I. LAIBUTA CArb, FCIArb. …………...…..JUDGE OF APPEAL G. W. NGENYE-MACHARIA ………………............ JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1780/eng@2026-09-25 5

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