Khavere v Kavuludi & 3 others (Civil Application E098 of 2024) [2025] KECA 1403 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a challenge to a Notice of Appeal because it was filed one day late, proving strict deadlines can decide cases.
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 application to strike out the Notice of Appeal was brought within the thirty-day period prescribed by the proviso to Rule 86 of the Court of Appeal Rules, 2022
- 2.Whether the Notice of Appeal is defective and ought to be struck out or deemed withdrawn under Rule 85
Key legal issues
#Whether the strike-out application complied with the proviso to Rule 86 of the Court of Appeal Rules, 2022
The application, filed on 25th July 2024 following service of the Notice of Appeal on 26th June 2024, was one day outside the thirty-day limit and was therefore incompetent; no leave for extension was sought.
The proviso to Rule 86 bars any application to strike out a Notice of Appeal brought more than thirty days from the date of service of the notice or record of appeal. The Court found it common ground that service was effected on 26th June 2024 and the motion was lodged on 25th July 2024, one day late. Relying on Joyce Bochere Nyamweya and William Mwangi Ngaruki, the Court held the proviso is couched in mandatory terms and leaves no discretion; the application was dismissed with costs.
Whether the Court may strike out a Notice of Appeal for want of form or procedural non-compliance
The Court is empowered to strike out a Notice of Appeal or record of appeal for want of form or procedural default, but the power must be exercised carefully and only where the failure is flagrant, deliberate, flippant or reckless.
Relying on Mukenya Ndunda v Crater Automobiles Limited, the Court reiterated that striking out is a power to be exercised cautiously, only where the party at fault flagrantly, deliberately, flippantly or recklessly failed to follow the rules. However, before reaching that question, the time bar in the proviso to Rule 86 was decisive, since the application was itself out of time and no leave to file out of time had been obtained.
Commencement and service of an appeal to the Court of Appeal
An appeal to the Court of Appeal is commenced by a Notice of Appeal lodged within fourteen days of the decision and served on all persons directly affected within seven days of lodging.
The Court restated the framework under rules 77 and 79(1) of the Court of Appeal Rules, 2022: a party desiring to appeal must give notice in writing within fourteen days of the decision, and must serve the lodged Notice of Appeal on all persons directly affected within seven days of lodging. These provisions framed the applicant's complaints, but the Court's decision turned on the applicant's own failure to observe the thirty-day limit in Rule 86.
Legal principles established
#- An application to strike out a Notice of Appeal or an appeal must be brought within thirty days from the date of service of the notice of appeal or record of appeal; the time limit in the proviso to Rule 86 is mandatory and the Court has no discretion to extend it absent leave sought and obtained.
- An application to strike out a Notice of Appeal brought after thirty days from service is a non-starter and incompetent unless leave is sought and obtained to file it out of time.
- The power to strike out an appeal or notice of appeal for non-compliance with procedure must be exercised cautiously, only where the non-compliance is flagrant, deliberate, flippant or reckless.
Court orders
#- 1.The Notice of Motion dated 23rd July 2024 is struck out
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rules 77(1)(6), 79(1) and 86 of the Court of Appeal Rules, 2022
Relief refused
#Striking out of the Notice of Appeal dated 13th June 2024
The application to strike out was filed one day outside the thirty-day period in the proviso to Rule 86, and no leave to file out of time was sought or obtained
Deeming the Notice of Appeal withdrawn under Rule 85
The application itself was incompetent, being filed out of the prescribed thirty-day window
Costs
Costs of the application to the respondent
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.
Provided that 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.
The instant application was therefore filed one day outside time. No leave was sought or obtained to file the application to strike out the notice of appeal out of time.
The upshot is that this application incompetent and is stuck out with costs to the respondent.
The rule is mandatory and an application brought outside the thirty-day period properly qualifies to be seen as an afterthought.
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 fiagrantly or deliberately or fiippantly or recklessly failed to follow the rules.
Issues in the judgment
#The judgment states the Notice of Appeal was served on the applicant's counsel on 20th June 2024 in the grounds ('was served upon the applicant’s counsel on 20th June, 2024 outside the stipulated 7 days') but elsewhere records service on 24th July 2024 (respondent's contention) and finds as a fact that service was on 26th June 2024; the notice date is also inconsistently given as '13th June, 2023' in one passage.
The judgment's concluding sentence contains a typographical error rendering the disposition ungrammatical ('this application incompetent and is stuck out'), which should read 'struck out'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khavere v Kavuludi & 3 others (Civil Application E098 of 2024) [2025] KECA 1403 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1403/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.