Barng’etuny & 2 others v Ngetich (Civil Appeal (Application) E079 of 2023) [2024] KECA 597 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a notice of appeal because it was never properly served within seven days, ending that appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to serve the notice of appeal within seven days under Rule 79(1) warrants striking it out under Rule 86
Yes. The notice of appeal was never served, the delay was inordinate, and no leave to serve out of time had been obtained; the notice of appeal was therefore struck out.
Rule 79(1) requires an intended appellant to serve the notice of appeal within seven days of lodging it, and Rule 86 permits a person affected to apply to strike out a notice where an essential step has not been taken within the prescribed time. The respondent admitted non-service, blamed counsel's oversight and the Deputy Registrar's late endorsement, and had only filed (not obtained) an application for enlargement of time. Attachment of the notice to a stay application did not constitute service. Substantive-justice arguments under Article 159(2)(d) could not rescue a fundamental, unregularised default that prejudiced the applicants.
Whether service of documents containing the notice of appeal (e.g. a stay application with its annexures) amounts to proper service of the notice of appeal
No. Service of a stay application with annexures is service of that application, not of the notice of appeal; the applicant first saw the notice annexed to the stay application.
Relying on Daniel Nkirimpa Monirei v Sayialel Ole Koilel, the court endorsed the principle that the purpose of service of a notice of appeal is to alert the party that the matter has escalated, enabling them to prepare. Tucking the notice away in a record or as an annexure ambushes the party and gives a false belief that the matter is concluded, occasioning prejudice and constituting a habit that should not be countenanced in any fair and just process.
Legal principles established
#- An annexure to an affidavit (such as a notice of appeal attached to a stay application) does not amount to proper service of the notice of appeal.
- Failure to serve a notice of appeal within the seven days prescribed by Rule 79(1), without enlargement of time, is an essential step not taken within the prescribed time, justifying striking out of the notice of appeal under Rule 86.
Court orders
#- 1.The application dated 8th December 2023 succeeds
- 2.The notice of appeal filed on 2nd October 2023 is struck out
- 3.The respondent shall bear the costs of the application
- On appeal from
- Trial court (superior court below, not named in the judgment)
- Jurisdiction invoked
- Rule 86 of the Court of Appeal Rules, 2022 (application to strike out a notice of appeal), with reference to sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gakere v Njuguna[2026] KECA 1700 (KLR)25 Sept 2026
Cite this brief
#Cite this brief
Caselaw, "Barng’etuny & 2 others v Ngetich (Civil Appeal (Application) E079 of 2023) [2024] KECA 597 (KLR)", Case Analysis (2024). Civil Application in ELD CACA No. E079 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/597/eng@2024-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.