Richard Kyallo Makau v Oliver Ndeti Kioko, Justus Muia Kioko & Eastern Properties Limited

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parcel number Mavoko Town Block/3/2241, which the applicant claimed to have purchased from the 1 st and 2nd respondents’ father (now deceased). The 1st and 2nd respondents had challenged the validity of the sale. Judgment was delivered on 12th July 2019, in favour of the applicant, declaring that the 1st and 2nd respondents held the subject land in trust for the applicant and directing that the said land be transferred to the applicant. 3. Pursuant to the ELC judgment delivered on 12 th July 2019, two notices of appeal were lodged; one by the 1st and 2nd respondents lodged on 17th July 2019 and the second, lodged by the 3rd respondent on 19th July 2019. On the date of lodging their notice of appeal, the 1 st and 2nd respondents requested for typed proceedings. 4. According to a certificate of delay issued to the 1st and 2nd respondents on 6th May 2021, the proceedings were ready on 3rd March 2021 and were collected on the same day. The period of delay was certified as 1 year and 8 months. The 1st and 2nd respondents lodged their appeal on 5 th July 2021. 5. On 19th July 2019, the 3rd respondent lodged a notice of appeal dated 18th July 2019, and at the same time, requested for typed proceedings. The 3 rd respondent collected the typed proceedings on 17th May 2021, and a certificate of delay certifying the period of delay as 674 days was issued. The 3rd respondent filed a memorandum of appeal on 8th March 2022. Page 3 of 8

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6. The applicant’s motion is brought under section 3A & 3B of the Appellate Jurisdiction Act and rule 86 of the Court of Appeal Rules. The applicant asks us to strike out the notices of appeal and record of appeal in Civil Appeal No 355 of 2021, on the ground that they were filed out of time, without leave of the Court. The applicant claims to have already executed the decree arising from the judgment of the ELC. 7. The applicant indicts the certificates of delay availed by the respondents, on account of misrepresentation of facts. In his affidavit in support of the application, he depones that according to registry records, the typed proceedings were ready by 25th November 2019. 8. The applicant contends that had the respondents been diligent, they would have paid for and obtained the proceedings as at that date, but the 1 st and 2nd respondents waited until 3rd March 2021, while the 3rd respondent waited until 17th May 2021. The applicant asserts that the respondents are guilty of laches for waiting for over two years before progressing their appeals. 9. The applicant maintains that he stands to be prejudiced by the delay in prosecuting the respondents’ appeals as he has already executed the decree issued by the ELC, with the suit property being registered in his name. 10. The 1st and 2nd respondents did not respond to the application. The 3rd respondent filed a replying affidavit Page 4 of 8

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sworn by its director, Mutuku Ndavi on 17th October 2024. Page 5 of 8

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The 3rd respondent also filed submissions dated 23rd October 2024. 11. The application proceeded before us on 17th March 2026, with the applicant and the 3rd respondent relying on their respective submissions already filed. In his submissions dated 11th November 2024, the applicant submits that the time lapse between the lodging of the notices of appeal and filing of the appeal on 5th July 2021 was 717 days. He adds that after the filing of the notices of appeal and with the typed proceedings being ready on 25 th November 2019, the respondents went into slumber until 5th July 2021, more than the 60 days prescribed under rule 86 of the Court of Appeal Rules. 12. The applicant relies on rule 85 of the Court Rules which provides that a party who has lodged a notice of appeal but fails to file the appeal within the prescribed time is presumed to have withdrawn the appeal. He relies on the decision in Charles Wanjohi Wathuku vs Githinji Ngure & Another [2016] eKLR to support his application. 13. The 3rd respondent relied on its submissions dated 23 rd October 2024, maintaining that it lodged a notice of appeal in time as required under rule 75 of the Court of Appeal Rules. The delay in filing the appeal is attributed to the time taken by the registry to prepare the typed proceedings. 14. The 3rd respondent blames the applicant for proceeding Page 6 of 8

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with execution, despite being aware that the judgment by the ELC Page 7 of 8

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had failed to address the issue of encumbrances on the suit property and the size of land to which the applicant was entitled. 15. The 3rd respondent contends that it had complied with rules 75 and 77(1) of the Court of Appeal Rules, on filing and service of the notice of appeal. It is submitted that the notice of appeal was filed within 7 days after judgment and that service of the notice of appeal was not contested. Further, the 3rd respondent had requested for typed proceedings on 15th July 2017, well within the 30 days prescribed under rule 82(2) of the Rules. 16. The 3rd respondent attributes the missed deadline for filing the appeal to delay from the registry in supplying the typed proceedings. He averted to a certificate of delay issued by the trial court and relied on the decision in African Service Maintenance Limited vs Cormaco Supply Base (EPZ) Limited & Another [2022] KECA 613 (KLR) to justify the delay in filing the appeal. 17. It is submitted that the proceedings having been obtained on 17th May 2021, computation of time for filing an appeal commenced from that date and lapsed on 16 th July 2021. The 3rd respondent concludes that the appeal filed on 5th July 2021 was well within time. The 3rd respondent defends the authenticity of the certificate of delay issued by the trial court, terming the allegations of misrepresentation as baseless. Page 8 of 8

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18. The 3rd respondent attacks the competence of the application to strike out the notice of appeal, stating that it is not properly before the Court, having been filed outside the 30-day timeline set by rule 86 of the Court of Appeal Rules. 19. It is submitted that the notice of appeal having been lodged on 19th July 2019, the period of service lapsed on 26th July 2019 and the time for filing an application to strike out the notice of appeal ran from 26 th July 2019 until 26th August 2019. The application filed on 29th July 2021 was therefore filed outside the timeline given by rule 86. In advancing this argument, the 3rd respondent relied on the decision of this Court in Sub-county Cooperative Officer, Turbo & Soy vs Raiply Woods (K) Ltd & 2 Others [2024] KECA 203 (KLR). 20. At the time this application was filed in 2021, the obtaining rules were the Court of Appeal Rules, 2010 (now repealed) whose rule 84 provided as follows: “A person affected 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 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. Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days from the date of service of the notice of appeal or record of appeal as the case may Page 9 of 8

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be ” Page 10 of 8

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21. Rule 84 in the repealed rules has been replaced by rule 86 in the Court of Appeal Rules, 2022 but the applicable principles, including the proviso limiting the time within which the application may be filed, have been retained. The proviso, which is couched in mandatory terms, provides that an application for striking out a notice of appeal or an appeal itself must be brought, within 30 days of service of the notice of appeal or record of appeal as the case may be. This Court has consistently affirmed that the timeline given in the proviso must be strictly observed. In Irungu vs Nairobi City Water & Sewerage Company Limited [2026] KECA 822 (KLR) the Court stated: “It follows, and this Court has repeatedly stated, that an application strictly grounded on Rule 86 is constrained by the thirty-day limitation in the proviso. In HFCK Limited v Kinyanjui (Civil Application E103 of 2023) [2025] KECA 893 (KLR), the Court reiterated that while the jurisdiction to strike out is discretionary, it must be invoked within the timeline prescribed by the proviso to Rule 86. A similar approach was taken in JOP v AKM (Civil Application E093 of 2023) [2024] KECA 1922 (KLR) where this Court underscored that procedural timelines in the Rules are neither ornamental nor optional.” 22. The 3rd respondent states, and the applicant does not deny, that the notice of appeal having been lodged on 19 th July 2019, the period of service lapsed on 26 th July 2019 and the time for filing an application to strike out the notice of appeal ran from 26th July 2019 until 26th August 2019. The Page 11 of 8

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application filed on 29th July 2021 was therefore filed outside the timeline given by rule 84 then and 86 now. 23. In the result, our finding is that the application to strike out the notice of appeal was filed outside the 30-day window provided under the Rules of the Court. The application is therefore incompetent and cannot be saved. It is dismissed with costs to the 3rd respondent. Dated and delivered at Nairobi this 25th day of September 2026. W. KORIR ……………………………… JUDGE OF APPEAL L.M. NDOLO ……………………………… JUDGE OF APPEAL A. I. HASSAN ……………………………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. Page 12 of 8

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