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

time, without the requisite leave, which together with the omission of the certied decree, renders the record defective. 4. The appellant had also led an application dated 9th September 2025, expressed to be brought under Articles 48, 50 and 159 of the Constitution, section 3A of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules. An unnecessary slew of constitutional and statutory provisions for an application for stay of execution of the judgment of the High court delivered on 11th July 2024, in which the court declined to grant the injunctive orders he sought. 5. When this matter came before Court for plenary hearing on 4th March 2026, the appellant’s application for stay of execution was dismissed for non-appearance under rule 58. This ruling is, therefore, in respect of the application dated 2nd December 2025, for striking out the record of appeal dated 21st February, 2025, led by the respondent, (hereinafter referred to as the respondent/applicant). 6. This application was canvassed by way of written submissions dated 9th December 2025, led by the rm of M/s Lutta & Company Advocates on behalf of the respondent/applicant. There was no response to the application, or submissions led on behalf of the appellant/respondent. 7. The respondent/applicant seeks to strike out the appellant’s Notice of Motion dated 9th September 2025, by which the appellant was seeking orders of stay of execution of the judgment and decree of the Environment and Land Court, delivered on 11th July 2024. The submissions led pursuant to the Court’s directions issued on 24th November 2025, are in response to both the application for stay of execution, and in support of the applicant’s present application to strike out the record of appeal. 8. On the competency of the appeal, the applicant submits that the Record of Appeal is fatally defective and incomplete, having omitted crucial primary documents, including the decree appealed from and the Certicate of Delay, contrary to rule 89 of the Court of Appeal Rules. Relying on Bwana Mohamed Bwana v Silvano Buko Bonaya & Another [2015] eKLR, they contend that an incomplete record renders an appeal incompetent and deprives the Court of jurisdiction to determine the substantive dispute. They further submit that the record was led and served outside the prescribed timelines and without leave of the Court to extend time. 9. When the application came before the Court for plenary hearing on 4th March 2026, the appellant/ respondent did not appear although he was duly served with the hearing notice. M/s Muga learned counsel, held brief for Mr. Luta learned counsel, for the respondent/applicant. 10. We have considered the grounds of the application, the supporting adavit, the submissions and the applicable Court of Appeal Rules. As stated earlier, the respondent did not le a reply or submissions in the application, nor did he participate in the hearing. 11. We note that the application is properly anchored on rule 86 which empowers a person aected by an appeal to apply for its striking out on the ground that no appeal lies, or that an essential step in the proceedings has not been taken, or has not been taken within the prescribed time. 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. 12. The record of appeal herein was served upon the applicant’s advocates on 2nd December 2025, and the application to strike out was led on the same date. It follows that the application was brought well within the thirty-day period prescribed by the rule. In Joyce Bochere Nyamweya v Jemima Nyaboke Nyamweya & Anor [2016] eKLR, this Court held that parties are bound by the mandatory nature of the proviso to rule 84. That an application seeking to strike out a Notice of Appeal must be led https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1884/eng@2026-09-25 2

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within thirty days of service of the Notice of Appeal, or the ling of the appeal ought to be struck out. The failure to do so renders such an application fatally defective and liable to be struck out. 13. The rst issue for determination is whether the Record of Appeal was instituted within the time prescribed by Rule 84(1). Rule 84(1) governs the formal institution of an appeal. It requires an appeal to be instituted within sixty days after the lodging of the Notice of Appeal. The proviso permits the exclusion of the period required for preparation and delivery of proceedings, only where the appellant has written a letter bespeaking the proceedings within thirty days of the decision, and served a copy of that letter upon the respondent. 14. The material before us indicates that upon the judgment being delivered on 11th July 2024, the Notice of Appeal was lodged on 23rd July, 2024 and served on the applicant on 24th July 2024. Subsequently, the record of appeal dated 21st February, 2025 was, according to the supporting adavit, led on 19th March 2025. 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. 15. The respondent/applicant’s averment, that they were not served with the letter bespeaking the proceedings have not been controverted. Further, we also observe that indeed, as stated by the respondent/applicant, the record contains no Certicate of Delay to grant the appellant/respondent the leeway to seek refuge in the proviso to rule 84(1) and exclude any period from the computation of time. 16. Additionally, rule 92(1) requires an appellant to serve the memorandum and record of appeal on the respondent who has complied with rule 81 before, or within seven days after lodging them. In this case, the record was lodged on 19th March 2025, but was not served until 2nd December 2025, a period of approximately eight months later. 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. 17. 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. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. W. KARANJA ............................. JUDGE OF APPEAL L. ACHODE ............................ JUDGE OF APPEAL L. NJUGUNA …………………….. 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/2026/1884/eng@2026-09-25 3

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