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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application (as filed 26th June 2023)· [2025] KECA 305 (KLR)

Keibukwo Investments Limited & 1 other v Sayani Investment Limited & 3 others

Court of Appeal
21 February 2025
2,610 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to kill an appeal where registry delays, not the appellant, caused the filing delay.

What this practically means

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Executive summary

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In a ruling of the Court of Appeal at Nairobi delivered on 21st February 2025 (Musinga, M'Inoti and Ngugi, JJA), Sayani Investments Limited applied to have Keibukwo Investments Limited's notice of appeal dated 12th February 2021 deemed as withdrawn for failure to file a record of appeal within 60 days under rule 84, and consequently to have the stay and injunctive orders of 1st April 2022 lifted. The respondent countered that a certificate of delay dated 24th July 2023 excluded 885 days taken by the court registry to prepare typed proceedings, and that it filed Civil Appeal No. E772 of 2023 within 60 days of that certificate. The Court found the respondent's account credible: an email suggesting the proceedings were ready on 25th November 2022 was not copied to the respondent's counsel, a registry failure that could not be laid at the respondent's feet, and the applicant never formally challenged the certificate of delay. The Court therefore refused to deem the notice of appeal withdrawn and, not finding it necessary to determine the second issue, directed that the orders of 1st April 2022 preserving the suit properties (LR No. 209/923, 209/924 and 209/925) remain in force pending hearing and determination of Civil Appeal No. E772 of 2023, noting the subject matter is registered in and possessed by the applicant. There shall be no order as to costs. The application was dismissed in its entirety.

Key legal issues

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01

Whether the notice of appeal should be deemed withdrawn for failure to file the record of appeal within 60 days under rule 84

Holding

No. The record was filed within 60 days of the certificate of delay showing 885 days of registry delay; the respondent took no default step

Reasoning

Rule 84 requires a record of appeal within 60 days of the notice of appeal, subject to the proviso for a certificate of delay. The certificate dated 24th July 2023 excluded 885 days taken to prepare the certified proceedings. An email suggesting readiness on 25th November 2022 was not copied to the respondent's counsel, a registry failure not attributable to the respondent. The respondent lodged Civil Appeal No. E772 of 2023 within 60 days of the certificate, so no step was missed and the notice of appeal cannot be deemed withdrawn.

p. 5
02

Whether the stay and injunctive orders of 1st April 2022 should be lifted as overtaken by events

Holding

The Court did not determine this issue, but directed the orders to remain in force pending hearing of the appeal, noting the subject matter is registered in and possessed by the applicant

Reasoning

Since the first issue was resolved against the applicant, the Court found no need to delve into the second. Counsel had conceded that cancellation of the title occurred during the pendency of the application that produced the orders. Given the omnibus nature of the orders preserving the suit property, and that the property is registered in and possessed by the applicant, the Court left the orders intact pending Civil Appeal No. E772 of 2023.

p. 5

Legal principles established

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  • A notice of appeal cannot be deemed withdrawn under rule 84 where the appellant has filed the record of appeal within 60 days of a certificate of delay, and delay in typing proceedings is attributable to the court registry rather than the appellant
  • A certificate of delay, if not formally challenged, is authoritative for computing the time for filing a record of appeal

Court orders

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  1. 1.The application dated 26th June 2023 is dismissed; the notice of appeal dated 12th February 2021 is not deemed withdrawn
  2. 2.The orders of 1st April 2022 shall remain in force pending hearing and determination of Civil Appeal No. E772 of 2023
  3. 3.No order as to costs
On appeal from
Environment and Land Court (Okong'o, J.)
Jurisdiction invoked
Inherent jurisdiction of the Court of Appeal under its Rules (rules 84 and 89 of the Court of Appeal Rules) in an interlocutory application within a pending appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Keibukwo Investments Limited & 1 other v Sayani Investment Limited & 3 others", Case Analysis (2025). Civil Application (as filed 26th June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/305/eng@2025-02-21

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