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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNot stated in the judgment· [2025] KECA 1254 (KLR)

Constant Gakuru Henry v Kenneth Kinoti Kithinji

Court of Appeal of Kenya
27 June 2025
SKS. ole KantaiJLJ. LesiitAMA. O. Muchelule
624 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out a notice of appeal served 10 days late, confirming the 7-day service deadline in Rule 79 is mandatory.

What this practically means

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Executive summary

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This was an application by motion under section 3A and 3B of the Appellate Jurisdiction Act and rule 79(1) of the Court of Appeal Rules seeking to strike out a notice of appeal dated 5th August 2024 and filed on 12th August 2024, on the ground that it was served out of the prescribed time. The underlying judgment of the Environment and Land Court at Meru, delivered on 31st July 2024, had allowed the applicant's appeal. The respondent admitted that the notice of appeal was served by email on 29th August 2024, ten days out of time, through his previous advocates, and blamed them for the default. The court held that rule 79 is couched in mandatory terms and requires an intended appellant to serve copies of the notice of appeal on all persons directly affected before or within 7 days after lodging it. Two aggravating features were noted: the notice of appeal was not lodged with the Registrar as required, and the letter bespeaking proceedings was not copied to the applicant, so the respondent could not benefit from the proviso to rule 84. The respondent had made no application for extension of time to serve the notice out of time. The court struck out the notice of appeal as irregular and defective, with costs to the applicant. The judgment was delivered at Nyeri on 27th June 2025 by a bench of three judges of appeal. Note: the judgment text contains a verbatim typographical error ('afiected') reproduced in quotations.

Key legal issues

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01

Whether late service of a notice of appeal, without an extension of time, is fatal

Holding

Yes - the notice of appeal is irregular and defective and was struck out

Reasoning

Rule 79 is couched in mandatory terms and requires service of the notice of appeal on all persons directly affected before or within 7 days of lodging. The respondent admitted service on 29th August 2024, ten days out of time, and made no application for extension of time. Additionally, the notice was not lodged with the Registrar as required, and the letter bespeaking proceedings was not copied to the applicant, disentitling the respondent from the proviso to rule 84. The notice was therefore irregular and defective.

p. 2

Legal principles established

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  • An intended appellant must serve copies of the notice of appeal on all persons directly affected by the appeal before or within 7 days after lodging the notice; service out of time without an extension of time renders the notice irregular and defective.
  • A respondent cannot benefit from the proviso to rule 84 (exclusion of days) where the application for proceedings was not copied to the other side in time.

Court orders

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  1. 1.Notice of Appeal dated 5th August, 2024 filed on 12th August, 2024 struck out for being irregular and defective
  2. 2.Costs of the application awarded to the applicant
On appeal from
Environment and Land Court, Meru
Jurisdiction invoked
Section 3A and 3B of the Appellate Jurisdiction Act and rule 79(1) of the Court of Appeal Rules

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, "Constant Gakuru Henry v Kenneth Kinoti Kithinji", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1254/eng@2025-06-27

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