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Court of AppealStruck OutCivil Appeal (from Nyeri), record of appeal lodged out of time· [2025] KECA 125 (KLR)

Ephantus Mugambi & 4 others v Kenya Electricity Transmission Company Limited (ketraco)

Court of Appeal of Kenya
7 February 2025
3,135 words in judgment
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The bottom line

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Five Meru landowners lost their appeal against KETRACO's Kshs. 687,844 compensation not on its merits, but because they filed their appeal paperwork late.

What this practically means

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Executive summary

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The appellants, registered owners of parcel NTIRIMITI/SETTLEMENT SCHEME/288 measuring about 42 hectares, challenged the Environment and Land Court's decision of 14th February 2018 granting Kenya Electricity Transmission Company Limited (KETRACO) a right of way over 2.866 acres for the Suswa-Isinya 400KV transmission line and fixing compensation at Kshs. 687,844, being 30% of market value per KETRACO's 2013 Gimco valuation, rather than the Kshs. 8,600,000 figure in the appellants' own 2016 valuation. Before reaching the merits, the Court of Appeal considered KETRACO's objections to the competency of the appeal: the record of appeal was filed about 100 days after the decision, outside the 60-day window in Rule 84; the letter bespeaking proceedings was filed and paid for well beyond 30 days and was not served on the respondent as required by the proviso to Rule 84(2); and no extension of time was sought under Rule 4. Counsel for the appellants conceded the delay, attributing it to registry challenges, and urged the Court to invoke Article 159(2)(b) of the Constitution. Relying on Bwana Mohamed Bwana (Supreme Court), Tharaka Nithi County Government v Gaichu, Mae Properties and Mugambi v KETRACO, the Court held the appeal incompetent: the notice of appeal was deemed withdrawn under Rule 85(1), the record of appeal was struck out, and the appellants were ordered to pay KETRACO's costs. The ELC decision was left undisturbed. The appeal was determined at Nyeri by Karanja, Mohammed and Kimaru, JJA, on 7th February 2025.

Key legal issues

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01

Competency of the appeal for non-compliance with Rule 84 of the Court of Appeal Rules

Holding

The appeal was incompetent because the record of appeal was filed about 100 days after the decision, the letter bespeaking proceedings was neither filed within 30 days nor served on the respondent, and no extension of time was sought under Rule 4.

Reasoning

The letter bespeaking proceedings dated 20th March 2018 was filed on 24th May 2018, roughly 100 days after judgment, and was not copied to the respondent or its counsel, so the proviso to Rule 84(2) could not operate to exclude the time for preparing proceedings. Counsel conceded the delay, attributing it to registry challenges, but made no application under Rule 4. Following the Supreme Court's decision in Bwana Mohamed Bwana and this Court's decisions in Tharaka Nithi and Mugambi v KETRACO, Rule 85(1) and (2) were triggered: the notice of appeal is deemed withdrawn and the record struck out.

p. 6
02

Whether Article 159(2)(b) of the Constitution could cure the non-compliance

Holding

The Court declined to excuse the procedural default; the mandatory rules of the Court prevailed and the appeal was struck out without reaching the merits.

Reasoning

Although counsel urged the Court to invoke Article 159(2)(b), the appellants filed no submissions responding to the competency objection, and the Court applied its settled jurisprudence that timelines in the Rules are mandatory and indispensable to proper adjudication. The authorities relied on (Mae Properties, Joyce Bochere Nyamweya, Tharaka Nithi, Mugambi v KETRACO) establish that failure to comply with the proviso renders an appeal defective and the notice of appeal dies a natural death after expiry of the 60 days absent a Rule 4 extension.

p. 6

Legal principles established

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  • Where an appellant fails to institute an appeal within the appointed time and does not obtain an extension of time under Rule 4, the notice of appeal is deemed withdrawn and the record filed out of time must be struck out, with the party in default liable for costs under Rule 85(1) and (2).
  • An appellant cannot rely on the proviso to Rule 84(2) to exclude the time taken to prepare proceedings unless the written application for proceedings was served upon the respondent.
  • An incompetent appeal divests a court of jurisdiction to determine the controversies in it.

Court orders

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  1. 1.The notice of appeal filed by the appellants on 23rd February, 2018 is deemed as withdrawn
  2. 2.The record of appeal filed out of time without leave of the Court is struck out
  3. 3.The appellants shall pay to the respondent the costs of the instant appeal
On appeal from
Environment and Land Court
Jurisdiction invoked
First appeal to the Court of Appeal; Rules of this Court (Rule 84, 85, 4, Court of Appeal Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ephantus Mugambi & 4 others v Kenya Electricity Transmission Company Limited (ketraco)", Case Analysis (2025). Civil Appeal (from Nyeri), record of appeal lodged out of time. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/125/eng@2025-02-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.