Khonde & another v Ngomeni Swimmers Ltd (Civil Appeal (Application) E013 of 2024) [2025] KECA 1713 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the notice was served before being lodged, confirming strict compliance with appeal timelines.
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 applicants' Motion was filed within the timelines prescribed in the proviso to rule 86 of the Rules of this Court
- 2.whether the respondent's notice of appeal was lodged and served upon the applicants within the period prescribed under rules 77(1) and 79(1) respectively
- 3.whether the record of appeal was filed and served within the period prescribed in rules 84(1) and 92(1) of the Court's Rules
Key legal issues
#Timeliness of the applicants' Motion under the proviso to rule 86
The Motion was filed in time because the record of appeal was served on the applicants' counsel on 19th July 2024, not 19th June 2024, and the Motion was filed on 26th July 2024, within 30 days.
The record contained two identical emails purporting to forward the record of appeal on 19th June and 19th July 2024. The June email did not disclose the name of the signatory, whereas the July email identified the signatory, lending it authenticity. The applicants admitted service on 19th July and filed the Motion within days. The Motion was therefore within the 30-day window in the proviso to rule 86 and competent.
Validity of the respondent's notice of appeal
The notice of appeal dated 15th February 2024 was of no legal or procedural effect because it was served before being lodged in Court; the only notice on record was lodged on 5th March 2024, 5 days out of time and without leave, and is incompetent.
Under rules 77(1) and (2), a notice of appeal must be lodged with the registrar within fourteen days of the decision. Lodging with the registry is a crucial step in initiating the appeal; a notice does not take effect solely upon service. The notice purportedly served on 15th February 2024 had not been lodged, and the notice lodged on 5th March 2024 was out of time without leave. It follows the notice is liable to be struck out.
Timeliness of filing and service of the record of appeal
The record of appeal was filed 10 days out of time without leave of the court or a certificate of delay; in any event, with the notice of appeal struck out, the appeal lacks foundation and is incompetent.
Rule 84(1) requires the record of appeal to be lodged within sixty days of the lodging of the notice of appeal. Measured from the 5th March 2024 lodging, the record filed on 15th May 2024 was 10 days late, with no leave or certificate of delay. Independently, since the notice of appeal is liable to striking out, the record built upon it is bereft of foundation.
Legal principles established
#- A notice of appeal must be lodged with the Court registry within 14 days of the impugned decision; a notice served but not lodged within time is of no legal or procedural effect, and service alone does not bring a notice of appeal into effect.
- An application to strike out a notice of appeal or an appeal must be brought within thirty days of service of the notice of appeal or the record of appeal, as the case may be; where service of the record is only effected on a later, authenticated date, time runs from that service.
- Where the notice of appeal is struck out, the record of appeal built upon it loses its foundation and the substantive appeal is equally incompetent.
- A record of appeal must be lodged within sixty days of the date when the notice of appeal was lodged, failing which leave of the court or a certificate of delay is required.
Court orders
#- 1.the respondent's notice of appeal and record of appeal are hereby struck out
- 2.the costs of the application shall be borne by the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Superior court (not named in the judgment)
- Not stated in the judgment
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules, 2022 (rules 77, 79, 84, 85, 86, 89 and 92); the judgment does not cite a constitutional provision
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.
It is not lost on us that a Notice of Appeal does not take efiect solely upon service if it has not been lodged with the Court. To our mind, lodging the Notice of Appeal with the Court registry is a crucial step in initiating the appeal process.
The only notice worth of our scrutiny with regard to the date on which it was lodged and served is the one lodged on 5th March 2024, 5 days out of time and without leave of the Court.
the very fact that the notice of appeal is liable to striking out, the substantive appeal is in itself bereft of the requisite foundation and is equally incompetent.
A notice of appeal is a primary document to be filed outright whether or not the subject matter under appeal is that which requires leave or not. It is a jurisdictional pre-requisite.
a. the respondent’s notice of appeal and record of appeal are hereby struck out; and b. the costs of the application shall be borne by the respondent.
Issues in the judgment
#The judgment describes the parties as applicants/respondents but the applicant's written submissions are dated '2nd April 2022', predating the Motion dated 26th July 2024 - an apparent typographical error in the judgment.
The judgment states three issues but uses the framing 'The 3 issues before us are:' followed by items numbered (i) and (ii) with the third introduced by '(iii)', a formatting inconsistency; it also states 'It is noteworthy that the email of 19th July 2024 makes no reference to the one of 19th June 2024, and neither is it a forwarding email in relation to the earlier one. But for the dates, the two emails are identical in every respect' - internally in tension since the emails differ in signatory disclosure.
The names of the parties before the Court are not fully stated; the respondent is identified only through its Director, Mario Nuzzo, and counsel, with no case number or neutral citation given in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khonde & another v Ngomeni Swimmers Ltd (Civil Appeal (Application) E013 of 2024) [2025] KECA 1713 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1713/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.