HFC Limited v Kinyanjui (Civil Application E103 of 2023) [2025] KECA 893 (KLR)
The bottom line
#The Court of Appeal struck out a Notice of Appeal served 13 days late, confirming that late service without a successful extension ends an appeal.
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, served 13 days out of time, should be struck out under rule 86(b) of the Court of Appeal Rules, 2022
- 2.Whether the application to strike out was brought within the 30-day window in the proviso to rule 86
Key legal issues
#Whether a notice of appeal served outside the prescribed 7 days should be struck out under rule 86(b)
Yes. The Notice of Appeal was served 13 days out of time; the respondent's application to extend time for service had been declined and no reference was filed, so the application to strike out was warranted.
The court noted the concession that service was 13 days late. A single judge of the court had already declined to extend time for service, and the respondent chose not to file a reference to the full bench, indicating disinterest in pursuing the appeal. Striking out followed as the essential step of timely service was not taken within the prescribed time.
Whether the application was filed within the 30-day proviso to rule 86
The application, dated 22nd November 2023 following service on 6th November 2023, was within the 30-day window.
Service of the Notice of Appeal occurred on 6th November 2023; the strike-out application dated 22nd November 2023 fell within 30 days of service, satisfying the proviso, which bars applications brought after the expiry of thirty days from the date of service of the notice of appeal or record of appeal.
Legal principles established
#- The power to strike out an appeal or notice of appeal is discretionary and must be exercised carefully, reserved for flagrant, deliberate, flippant or reckless breaches of procedure, based on the circumstances of each case.
- An application to strike out a notice of appeal or appeal under rule 86 must be brought within thirty days from the date of service of the notice of appeal or record of appeal.
Court orders
#- 1.The Notice of Motion dated 22nd November 2023 is allowed
- 2.The Notice of Appeal dated 11th October 2023 and filed on 17th October 2023 is struck out
- 3.Costs of the application awarded to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Mombasa High Court Civil Suit No 58 of 2019
- Jurisdiction invoked
- Rule 86(b) of the Court of Appeal Rules, 2022 and paragraph 3(f) of the Court of Appeal Practice Directions, 2015
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.
The power to strike out an appeal or notice of appeal on account of failure by an appellant to follow the rules of procedure requires to be exercised carefully and only in cases where it is shown that the party at fault flagrantly or deliberately or flippantly or recklessly failed to follow the rules.
an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days from the date of service of the notice of appeal or record of appeal as the case may be.
Accordingly, the Notice of Motion dated 22nd November 2023 is merited and is hereby allowed, with the result that the Notice of Appeal dated 11th October 2023 and filed on 17th October 2023 in respect of this appeal is hereby struck out with costs to the applicant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "HFC Limited v Kinyanjui (Civil Application E103 of 2023) [2025] KECA 893 (KLR)", Case Analysis (2025). Civil Application No E111 of 2023 (Strike Out Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/893/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.