Erdemann Property Limited v Safaricom Staff Pension Scheme Registered Trustees & 3 others; Everest Limited & another (Interested Parties)
The bottom line
#Supreme Court struck out appeal for missing the 7-day deadline to serve notice and omitting key documents.
What this practically means
#The Supreme Court of Kenya threw out an appeal because the appellant failed to serve the notice of appeal within the required seven days and left out important documents from the appeal record. The court said these procedural mistakes were serious and could not be excused. The case shows that strict compliance with court rules is mandatory, and missing a deadline or failing to include all necessary papers can end an appeal before it is heard.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of appeal was served within the prescribed time under rule 37(1) of the Supreme Court Rules
- 2.Whether the record of appeal is incomplete for omitting the supplementary record of appeal from the Court of Appeal
Key legal issues
#Whether the notice of appeal was served within the prescribed time under rule 37(1) of the Supreme Court Rules
The notice of appeal was not served within seven days as required, making it defective.
The appellant filed the notice of appeal on March 30, 2023 in the Court of Appeal and on April 28, 2023 in the Supreme Court, but service was only effected on May 4, 2023, which was 35 days after filing. The court held that rule 37(1) requires service within seven days of lodging the notice, and this failure was a jurisdictional defect that could not be excused.
Whether the record of appeal is incomplete for omitting the supplementary record of appeal from the Court of Appeal
The record of appeal is incomplete because it omitted the supplementary record of appeal that was part of the Court of Appeal proceedings.
The court examined rule 40 of the Supreme Court Rules, which requires the record to include all relevant pleadings. The supplementary record contained nine documents including minutes, sketches, drawings, and affidavits from the Environment and Land Court, which were considered relevant for the determination of the appeal. Their omission rendered the record incomplete.
Legal principles established
#- A notice of appeal must be served within seven days of filing it, or the appeal becomes invalid.
- The record of appeal must include all pleadings from the lower court, including any supplementary record.
- Failure to comply with procedural rules is a jurisdictional defect that cannot be ignored.
- The Supreme Court will strike out an appeal if the notice of appeal is not served on time.
- An incomplete record of appeal is grounds for striking out the entire appeal.
Court orders
#- 1.The notice of motion dated June 21, 2023 is hereby allowed
- 2.The notice of appeal dated March 23, 2023 and the record of appeal dated April 28, 2023 are hereby struck out
- 3.The 1st respondent shall have costs of this application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- CA No 185 of 2017
- Jurisdiction invoked
- Section 3A, 21(1) and (2) of the Supreme Court Act; Rules 31(6), 37(1), 40(1)(d), 65(1) and (2) of the Supreme Court Rules 2020
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the appellant having failed to serve the notice within seven days as prescribed by the Rules missed a very crucial preliminary step in instituting the appeal
the nine documents contained in the supplementary record are minutes, sketches, drawings, approvals, affidavits, and other pleadings from the Environment and Land Court, we find that the same ought to have been included in the record before this court
Rules of procedure must be applied and followed at all times by the parties, counsel, and even the courts to ensure there is fairness of proceedings and to afford parties the equality of arms
Key timeline
#Practical implications
#Strict compliance with Rule 37(1) is critical
Ensure you serve the notice of appeal within seven days of lodging it. The Supreme Court treated this as a jurisdictional requirement – missing the deadline means the appeal is dead. Also, when filing a record of appeal, include every document that was before the lower court, including any supplementary record. Omission, even if inadvertent, will lead to striking out. Use a checklist to verify all required documents.
Procedural errors can kill your appeal
If your company is involved in litigation that reaches the Supreme Court, the legal team must follow every procedural rule to the letter. This case shows that even a strong case on the merits can be thrown out for missing a deadline or failing to include a document. Insist that your lawyers confirm service and record completeness before filing to avoid wasting time and costs.
Court deadlines are strict – no exceptions
If you are appealing a case in Kenya, remember that you must serve the other side with the notice of appeal within seven days of filing it. Also, the appeal record must contain all documents from the lower court. Missing these steps means your appeal will be struck out, no matter how good your case is. Always ask your lawyer to confirm these rules have been followed.
Frequently asked questions
#What happens if you fail to serve a notice of appeal within 7 days in Kenya?+
The Supreme Court will strike out your appeal. In this case, the appellant served 35 days after filing, and the court ruled that the notice of appeal was defective and the appeal incompetent. The seven-day rule is a strict requirement that cannot be excused.
Can the Supreme Court of Kenya refuse to hear an appeal if the record is incomplete?+
Yes. The court struck out the appeal because the record omitted the supplementary record of appeal that contained minutes, sketches, and affidavits from the lower court. The court said the record must include all relevant pleadings, and an incomplete record makes the appeal liable to be struck out.
What is the consequence of not following Supreme Court rules in Kenya?+
The court will treat non-compliance as a jurisdictional defect. In this case, both the notice of appeal and the record of appeal were struck out, and the appellant had to pay costs to the respondent. Strict adherence to the rules is mandatory, and there are no exceptions for inadvertence or good faith.
Is there any way to extend the 7-day deadline for serving a notice of appeal in Kenya?+
The Supreme Court Rules do not provide for an extension of the seven-day period under rule 37(1). The court in this case emphasized that the deadline is a jurisdictional prerequisite. Once the seven days pass without service, the notice of appeal becomes defective and cannot be cured. You must serve within seven days of filing.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Khavere v Kavuludi & 3 others (Civil Application E098 of 2024) [2025] KECA 1403 (KLR)[2025] KECA 1403 (KLR)31 Jul 2025
- Nairobi Bottlers Limited v Ndung’u & another[2023] KESC 96 (KLR)10 Nov 2023followed
Cite this brief
#Cite this brief
Caselaw, "Erdemann Property Limited v Safaricom Staff Pension Scheme Registered Trustees & 3 others; Everest Limited & another (Interested Parties)", Case Analysis (2023). Petition (Application) E013 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/76/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.