Hindocha v Chena (Civil Appeal (Application) E015 of 2022) [2024] KECA 819 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the appellant never served the record of appeal, and blaming her lawyer did not help.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the striking-out application under rule 86
The application was within time; time runs from service, and the applicant having learnt of the record of appeal in September 2023 and filed on 21st September 2023, the 30-day proviso was satisfied
The proviso to rule 86 bars striking-out applications brought more than 30 days after service of the notice of appeal or record of appeal. The applicant deponed he was never served with the record and only discovered it on a registry enquiry in September 2023. The respondent conceded only a draft record was served without disclosing the date. The court therefore had no basis to doubt the application was within 30 days.
Consequence of non-service of the record of appeal under rule 92(1)
Non-service of the record of appeal within the prescribed time renders the appeal incompetent and it falls prey to striking out under rule 86(b)
Rule 92(1) obliges an appellant to serve the memorandum and record of appeal on each respondent before or within seven days after lodging. The court held the rule mandatory; the respondent neither served the applicant nor explained the failure, and no extension of time for service had been obtained. The un-served record was accordingly a nullity fit only to be struck out.
Whether counsel's mistake excuses the litigant
Blaming a former advocate does not cure the failure to serve or render the appeal competent
Counsel for the respondent attributed the omissions to changes in the law firm's management and urged the court to overlook them in the interest of substantive justice. The court held the explanation insufficient, noting any explanation would be futile absent an order extending the period of service, and invoked the principle that justice delayed is justice denied.
Legal principles established
#- Rule 92(1) of the Court of Appeal Rules is mandatory: an appellant must serve the record of appeal within the prescribed period or the appeal is incompetent and liable to be struck out under rule 86(b)
- Under the proviso to rule 86, an application to strike out a notice of appeal or record of appeal must be filed within thirty days from the date of service of the notice of appeal or record of appeal, as the case may be
Court orders
#- 1.The notice of motion dated 21st September 2023 is allowed
- 2.The respondent's appeal is struck out
- 3.Costs of the motion are awarded to the applicant
- Jurisdiction invoked
- Rule 86 of the Court of Appeal Rules (application to strike out an appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Vodafone Group Plc v Goodweek Inter-services Limited & 3 others[2026] KECA 1530 (KLR)31 Jul 2026
- Mwadilo & another v Sagalla Ranchers Limited (Civil Appeal (Application) E003 of 2023) [2026] KECA 931 (KLR)[2026] KECA 931 (KLR)15 May 2026followed
- Mutinga v Joreth Limited & 3 others (Civil Appeal (Application) E136 of 2021) [2026] KECA 145 (KLR)[2026] KECA 145 (KLR)30 Jan 2026followed
Cite this brief
#Cite this brief
Caselaw, "Hindocha v Chena (Civil Appeal (Application) E015 of 2022) [2024] KECA 819 (KLR)", Case Analysis (2024). Notice of motion dated 21st September 2023 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/819/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.