Hassan Barasa Mombasa & another v Shaiwaz Sadrudin Jiwa

3. The application was opposed by the appellants/respondents through a Replying Adavit sworn by Hassan Barasa Mombasa on 26th June 2026, alongside written submissions dated 7th July 2026. The appellants argued that time did not begin to run until the day after the issuance of the Certicate of Delay on 16th December 2025. Furthermore, the appellants argued that under Order 50 Rule 4 of the Civil Procedure Rules and Rule 4 of the Court of Appeal Rules, the period between 21st December and 13th January (the Christmas recess) must be omitted from the computation of time. Consequently, the appellants contended that the Record of Appeal was properly led within time. 4. Regarding service, the appellants admitted that the Record of Appeal was served out of time on 7th April 2026. However, Mr. Makokha explained that an initial service had been attempted on 6th March 2026 via Mr. Bw'onchiri's Yahoo email address by his former partner, but the email bounced back. It was not until he took over the le in April 2026 that he noticed the undelivered emails and re-served the Record via Gmail. The appellants prayed that the Court overlooks this procedural defect under Article 159(2)(d) of the Constitution, relying on the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2014] eKLR, and allow the appeal to proceed on merit. 5. The application proceeded for hearing virtually on 15th July 2026. Learned counsel Mr. Omondi Bwonchiri appeared for the respondent/applicant, while learned counsel Mr. Simiyu Makokha appeared for the appellants/respondents. The Court raised a preliminary query, noting that the application was led on 10th April 2026, just three days after the admitted service of the Record of Appeal on 7th April 2026. We are satised that this application was led well within the 30-day statutory window prescribed under Rule 86 of the Court of Appeal Rules. 6. We have carefully considered the application, the rival adavits, the submissions of both counsel, and the applicable law. The issues for determination before us are: a. whether the Notice of Appeal can be deemed withdrawn; b. the legal provisions regarding the days to be excluded in computing time; c. whether the Record of Appeal was led and served out of time; and d. whether the defects can be cured by Article 159(2)(d) of the Constitution. 7. On the rst issue, Mr. Bw'onchiri urged the Court to deem the Notice of Appeal as withdrawn under Rule 85 of the Court of Appeal Rules. However, as we advised counsel during the hearing, the established jurisprudence of this Court is that a Notice of Appeal can only be deemed withdrawn if no step has been taken since its ling. In this instance, the Record of Appeal was subsequently led, albeit late. The taking of a subsequent step precludes this Court from deeming the Notice of Appeal as withdrawn. Consequently, that prayer fails. 8. On the computation of time, Mr. Bw’onchiri correctly submitted that Order 50 Rule 4 of the Civil Procedure Rules does not apply to this Court. This is because Section 1 of the Civil Procedure Act expressly limits its application to the High Court and subordinate courts, whereas this Court is governed by its own Rules. Rule 3 of the Court of Appeal Rules, 2022 is instructive on the computation of time. Rule 3(b) provides that, unless the Court otherwise directs, the period of the Christmas recess shall not be reckoned in the computation of time. The Christmas recess is dened as the period commencing on the 21st of December and ending on the 13th of January in the following year. Therefore, the appellants' assertion that the Christmas recess must be excluded in computing time is a correct statement of the law. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2061/eng@2026-09-25 2

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9. However, Mr. Makokha's reliance on the exclusion of all weekends and public holidays throughout the computation period is misplaced. As submitted by Mr. Bw'onchiri, the Rules of this Court specically provide that weekends and public holidays are only excluded when the last day of the prescribed period falls on such a day. This principle was set out in Kenya Airports Authority v Maur Abdala Bwanamaka, Civil Application No. 49 of 2018 [2018] eKLR, which dealt with the computation of time for obtaining proceedings, and does not aid the appellants' broad exclusion of all weekends. 10. Under Rule 84(1) of the Court of Appeal Rules, 2022, the Record of Appeal must be instituted within sixty (60) days of the date of the decision. The 60 days do not run from the date of the Notice of Appeal or the date of the Certicate of Delay; rather, the clock starts ticking from the date of the judgment, subject to Rule 84(2), which excludes the period the registry takes to prepare the proceedings. The judgment was delivered on 18th September 2025. The appellants applied for proceedings on 19th September 2025 and collected them on 9th December 2025. This period is excluded from the 60-day computation. Time resumed running on 10th December 2025. 11. Factoring in the remaining days, and duly excluding the Christmas recess (21st December 2025 to 13th January 2026) as mandated by Rule 3(b)of the Court of Appeal Rules, the statutory 60-day period lapsed by 3rd March 2026. According to the Case Tracking System, the Record of Appeal was not lodged until 5th March 2026. It was therefore lodged out of time. Regarding the Certicate of Delay, it is a well settled principle of law that it only operates to exclude the specic 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; rather, the appellant is only entitled to the balance of the 60 days remaining. This principle was clearly stated in Stanley Kang'ethe Kairu v Joseph Mwambora [2020] eKLR. Consequently, the appellants' argument that time started running from the date of the Certicate of Delay is unmerited. 12. On the issue of service, although the applicant's Notice of Motion erroneously cited Rule 90 of the Court of Appeal Rules, 2022, the correct provision governing the service of a Record of Appeal is Rule 92. Under Rule 92(1), an appellant shall, within seven days from the date of lodging the record of appeal, serve the same on the respondent. In this instance, the Record of Appeal was eectively served on the applicant on 7th April 2026, well outside the 7 days prescribed under the Rule. Mr. Makokha admitted that service was out of time. While he claimed an initial service was attempted via a Yahoo email address that failed, no adavit or email extracts were annexed to prove this alleged attempted service. Mr. Bw'onchiri denied having an active Yahoo account. Even if the email had bounced back, procedural rules require proper and eective service within the stipulated time. 13. Finally, we must address the appellants' plea to invoke Article 159(2)(d) of the Constitution to cure these procedural defects. As was cautioned in the Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) case, while Article 159 demands justice without undue regard to procedural technicalities, procedural rules are not entirely obsolete and must be respected. Filing a Record of Appeal out of time without leave of the Court, and failing to serve it within the statutory period, are fundamental defects that go to the jurisdiction of the Court. A party cannot hide under Article 159 to validate an incompetent appeal. The appellants ought to have led an application for the extension of time before lodging and serving the Record out of time. 14. Having been led out of time, and served out of time, the Record of Appeal is fundamentally incompetent. The appellants' arguments regarding the Christmas recess and the Certicate of Delay, while legally sound in isolation, cannot cure the fundamental defect of lodging the Record of Appeal after the 60- day window had already expired. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2061/eng@2026-09-25 3

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15. 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. DATED AND DELIVERED AT KAKAMEGA THIS 25TH DAY OF SEPTEMBER, 2026. P. NYAMWEYA ……………………….. JUDGE OF APPEAL ALI-ARONI ………………….…… JUDGE OF APPEAL R. NGETICH ……………………… 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/2026/2061/eng@2026-09-25 4

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