Ephantus Mugambi & 4 others v Kenya Electricity Transmission Company Limited (ketraco)
The bottom line
#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
#Executive summary
#Key legal issues
#Competency of the appeal for non-compliance with Rule 84 of the Court of Appeal Rules
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.
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decisions in Tharaka Nithi and Mugambi v KETRACO, Rule 85(1) and (2) were triggered: the notice of appeal is deemed withdrawn and the record struck out.
Whether Article 159(2)(b) of the Constitution could cure the non-compliance
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.
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.
Legal principles established
#- 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appeal within the appointed time and does not obtain an extension of time under Rule 4, the notice of appeal is deemed withdrawn and the record filed out of time must be struck out, with the party in default liable for costs under Rule 85(1) and (2).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
#- 1.The notice of appeal filed by the appellants on 23rd February, 2018 is deemed as withdrawn
- 2.The record of appeal filed out of time without leave of the Court is struck out
- 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
#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.
- Silas Kirai Jackson v Kenya Electricity Transmission Company Limited (ketraco)[2025] KECA 1500 (KLR)19 Sept 2025followed
Cite this brief
#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.