Achola v Onyango (Civil Application E041 of 2024) [2025] KECA 638 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a notice of appeal because the appellant served it over a year late, confirming strict timelines apply.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent's notice of appeal dated 1st November, 2022 was incompetent for failure to serve it upon the applicant within seven days of lodging, as required by Rule 79 of the Court of Appeal Rules
- 2.Whether the Court could excuse the late service of the notice of appeal in the absence of an application for extension of time
- 3.Whether the respondent's counsel's failure to obtain leave to come on record at the appellate stage vitiated the notice of appeal
Key legal issues
#Effect of failure to serve a notice of appeal within seven days under Rule 79
Late service without extension of time renders the notice of appeal liable to be struck out; reasons for delay may only be considered in a Rule 4 extension application.
The respondent lodged the notice on 2nd November, 2022 but served it only on 14th March, 2024, about one year and five months later. The respondent conceded the default but never applied for extension of time. The Court held that while the excuses might have supported a Rule 4 application, they could not cure the default when faced with an application to strike out. Precedent establishes that clear procedural rules must be followed even for a solitary unintentional omission.
Whether 'no prejudice' submissions can save a defaulting party from striking out
A defaulting party cannot rely merely on the absence of prejudice to preserve its process; it must promptly take remedial measures.
Citing Mwawasi v Shako, the Court endorsed the principle that parties who fall foul of procedural stipulations must speedily take remedial measures and cannot simply assert that no prejudice was occasioned. The respondent neither sought leave to come on record nor extension of time for service, and the applicant only learned of the appeal when served with a stay application.
Legal principles established
#- A notice of appeal must be served on all persons directly affected within seven days of lodging; where the time for service lapses, the defaulting party must seek extension of time, and failure to do so renders the notice liable to be struck out.
- The procedural timelines in the Court of Appeal Rules are not subject to the general discretion under Article 159 of the Constitution.
Court orders
#- 1.The application is allowed for contravening Rule 79 of the Court of Appeal Rules
- 2.The respondent's notice of appeal dated 1st November, 2022 is struck out
- 3.The applicant is awarded costs of the motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Not stated in judgment
- Jurisdiction invoked
- Rules 44, 45, 79(1) & (2) and 85 of the Court of Appeal Rules and Section 3A of the Appellate Jurisdiction Act (inherent/appellate jurisdiction over appeal processes)
Relief refused
#Respondent's plea to have the appeal proceed to hearing on its merits notwithstanding late service
The rules of the Court are not amenable to the general discretion under Article 159; defaulting parties should seek extension of time rather than rely on absence of prejudice
Costs
The applicant will have costs of the motion.
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.
Accordingly, we allow the application dated 1st November, 2022, for contravening the provisions of Rule 79 of the rules of this Court. The said notice of appeal is consequently struck out. The applicant will have costs of the motion.
where a law provides for the time within which an action or step in the proceedings ought to be done, if that time lapses, one must seek extension of time.
the rules of procedure and timeline of this Court, are not amenable to the general discretion provided for under Article 159 of the Constitution, with respect to procedural technicalities
Issues in the judgment
#The court's final order states it allows 'the application dated 1st November, 2022', but the application before it is the applicant's notice of motion dated 3rd April, 2024; the 1st November, 2022 date is that of the respondent's notice of appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Achola v Onyango (Civil Application E041 of 2024) [2025] KECA 638 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/638/eng@2025-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.