Kenyatta National Hospital v Muthungu (Civil Appeal (Application) E594 of 2021) [2025] KECA 270 (KLR)
The bottom line
#The Court of Appeal dismissed a late attempt to strike out an irregularly filed appeal because the application itself missed rule 84's mandatory 30-day deadline.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an application to strike out a record of appeal filed outside the 30-day period under rule 84 of the Court of Appeal Rules is competent
- 2.Whether the record of appeal filed out of time and without leave should be struck out
Key legal issues
#Effect of failure to file a striking-out application within the 30 days prescribed by rule 84
An application to strike out a record of appeal brought more than 30 days after service is incompetent and must be dismissed, notwithstanding that the record itself was filed out of time and without leave.
The Court accepted that both the notice of appeal and the record of appeal were filed out of time and without leave. However, rule 84 requires an application to strike out to be brought within 30 days of service of the notice or record. The applicant filed the motion some four months after service, outside the prescribed window. The rule's time limit is mandatory and the Court has no discretion to vary it, so the incompetence of the applicant's own application defeats the motion even though the respondent's appeal was itself irregularly filed.
Legal principles established
#- Rule 84 prescribes a mandatory 30-day period for bringing an application to strike out a notice of appeal or record of appeal from the date of service, outside which the application is incompetent and the Court has no discretion to extend it.
Court orders
#- 1.The application to strike out the record of appeal is dismissed as incompetent
- 2.Each party shall bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal under its Rules (rule 84), on a striking-out application
Relief refused
#Striking out of the record of appeal dated 4th October 2021
The striking-out application itself was filed outside the mandatory 30-day period prescribed by rule 84 of the Court's Rules
Costs
Each party shall bear its own costs of the application.
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.
In the circumstances, the application before us is incompetent and is hereby dismissed. Each party shall bear its own costs of the application.
The proviso to rule 84 is couched in mandatory terms and we have no discretion to vary the same. The applicant can only blame himself for failing to take the appropriate action timeously.
Issues in the judgment
#Judgment records the record of appeal as served on 14th March 2021, which predates its filing date of 4th October 2021; the court itself corrects this to 14th October 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenyatta National Hospital v Muthungu (Civil Appeal (Application) E594 of 2021) [2025] KECA 270 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/270/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.