Kirira v Deputy Registrar High Court Nyeri & 4 others (Civil Appeal (Application) 128 of 2020) [2025] KECA 953 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal filed late and without proper notice, ruling Covid-19 and Article 159 could not excuse ignoring mandatory procedures.
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 counsel who commissioned the affidavit in support of the application was qualified
- 2.Whether the appeal should be struck out due to lack of service of the notice of appeal
- 3.Whether the record of appeal should be struck out for having been filed out of time and without a certified copy of the decree being appealed against
Key legal issues
#Qualification of the commissioner for oaths who commissioned the supporting affidavit
The issue became moot because the Law Society of Kenya's later letter confirmed the commissioner held a practising certificate for 2020.
The LSK had issued conflicting letters on whether the commissioner for oaths held a 2020 practising certificate. The last letter cleared the confusion, confirming the commissioner was qualified. The court therefore held the issue to be a non-issue and did not strike the application on that ground.
Consequences of failure to serve the notice of appeal within seven days
Service of the notice of appeal is mandatory; no plausible explanation was given and the Covid-19 excuse failed because service could have been effected online.
Rule 79 (as quoted) requires an intended appellant to serve the notice of appeal on all persons directly affected within seven days, in mandatory terms. The notice here was never served on the applicant or his counsel, and the letter bespeaking proceedings was not copied to them. The court found no plausible explanation, holding that online service was available during the pandemic restrictions.
Filing the record of appeal out of time and without a certified copy of the decree
The record of appeal filed on 2nd September 2020 was out of time, filed without leave and without a certified decree, and was therefore struck out.
Rule 84 requires institution of the appeal within sixty days, with time excluded only where a certificate of delay is obtained under the proviso. No certificate of delay was furnished, making it impossible to determine when proceedings were requested or supplied, and no leave to file out of time was sought. Further, the decree on the record was not certified as required by rule 87(1)(h).
Interaction between procedural rules and Article 159 of the Constitution
Rules of procedure are the handmaidens of justice, but they bind; Article 159 cannot rescue a litigant who disregards them without plausible explanation.
The court acknowledged the established view that procedural rules serve justice and that discretion may favour a defaulting litigant in deserving cases. However, it held that allowing habitual non-compliance to be cured by Article 159 would throw the courts into disarray, interfere with the administration of justice, and be unfair to the complying party.
Legal principles established
#- The requirement to serve a notice of appeal on all persons directly affected within seven days of lodging it, under the Court of Appeal Rules, is mandatory and non-compliance without plausible explanation justifies striking out the appeal.
- Article 159 of the Constitution (substantive justice over technicalities) is not a refuge for litigants who flout rules of procedure without plausible reasons for their omission.
- A party who files a record of appeal out of time must either obtain a certificate of delay under the proviso to rule 84 or seek leave of the court to file the record out of time; neither was done here.
Court orders
#- 1.The notice of appeal dated 13th February 2020 and lodged on 20th February 2020 is struck out
- 2.The record of appeal filed on 2nd September 2020 is struck out
- 3.The applicant is awarded the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nyeri
- Petition No. 5 of 2018
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal exercised through rules 77(1), 82(1), 84 and 87(1)(h) of the Court of Appeal Rules, 2010; sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution invoked by the respondent in opposition.
Relief refused
#The respondent's plea for substantive justice under Article 159 of the Constitution in lieu of compliance with the Rules
The court held that a party who flouts procedural rules with no plausible explanation cannot invoke Article 159
The respondent's explanation that the Covid-19 pandemic accounted for the failure to serve the notice of appeal and file the record of appeal in time
Both the notice of appeal and the letter bespeaking proceedings could have been served online, and no leave to file out of time was sought
Costs
The application was allowed with costs to the applicant.
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.
Ultimately, we allow the application with costs by striking out the notice of appeal and the record of appeal.
We share this view and do not believe that a party that fiouts all rules of procedure can seek refuge in Article 159 of the Constitution.
Giving notice of an intended appeal is good practice and ensures that the opposing party is put on notice. The requirement of this Court’s rule is couched in mandatory terms.
In this matter, no plausible explanation has been provided for why the notice of appeal was filed but not served or why the letter initiating the proceedings was not copied to the opposing party.
The rules also require that the letter bespeaking proceedings be copied to the other side and a record be prepared and filed within 60 days.
Issues in the judgment
#The judgment states the application was brought under the Court of Appeal Rules 2010, but in its analysis quotes 'Rule 79 of the Court of Appeal Rules 2022', an inconsistency in the version of the Rules applied.
The judgment twice uses the phrase 'stuck out' where 'struck out' is plainly intended, and misspells 'Corvid-19' for Covid-19, indicating typographical errors in the official text.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muli v Kenya Commercial Bank Ltd & another (Civil Appeal (Application) E212 of 2022) [2026] KECA 1245 (KLR)[2026] KECA 1245 (KLR)3 Jul 2026
- Yego v Kogo (Civil Application E003 of 2025) [2025] KECA 1225 (KLR)[2025] KECA 1225 (KLR)11 Jul 2025followed
Cite this brief
#Cite this brief
Caselaw, "Kirira v Deputy Registrar High Court Nyeri & 4 others (Civil Appeal (Application) 128 of 2020) [2025] KECA 953 (KLR)", Case Analysis (2025). Civil Application arising from Notice of Motion dated 17th September 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/953/eng@2025-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.