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Court of AppealAllowedNot stated in the judgment as provided

Khonde & another v Ngomeni Swimmers Ltd (Civil Appeal (Application) E013 of 2024) [2025] KECA 1859 (KLR)

Court of Appeal of Kenya
24 October 2025
2,249 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out an entire appeal because the notice of appeal was filed five days late without permission.

What this practically means

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Executive summary

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This is a decision of a three-judge bench of the Court of Appeal at Mombasa, delivered on 24th October 2025, on a Notice of Motion by Tabu Tuva Khonde and Kahindi Kaingu Ngonda seeking to strike out the respondent's notice of appeal dated 15th February 2024 (lodged 5th March 2024) and the record of appeal filed on 15th May 2024. The Motion was brought under rules 77, 79, 84, 85, 86 and 89 of the Court of Appeal Rules, 2022. The Court framed three issues: timeliness of the strike-out Motion under the proviso to rule 86; validity of the notice of appeal under rules 77(1) and 79(1); and timeliness of the record of appeal under rules 84(1) and 92(1). The Court found, on the two competing emails forwarding the record, that effective service occurred on 19th July 2024, so the Motion filed on 26th July 2024 was within the 30-day window. On the second issue, the Court held that a notice of appeal served but never lodged in the registry is of no legal or procedural effect; the only notice on record was lodged five days out of time without leave, rendering it incompetent. The record of appeal was also filed ten days late without leave or a certificate of delay, and in any event lacked foundation given the incompetent notice. The Motion succeeded in full: the notice of appeal and record of appeal were struck out, with costs to the applicants borne by the respondent. The decision binds subordinate courts and the High Court on the mandatory character of lodging and serving a notice of appeal within rule 77 timelines.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants' Motion was filed within the timelines prescribed in the proviso to rule 86 of the Court of Appeal Rules
  2. 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. 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

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01

Competence of the strike-out Motion under the proviso to rule 86

Holding

The Motion was filed within time because the record of appeal was effectively served on 19th July 2024, and the Motion was filed on 26th July 2024, within 30 days.

Reasoning

The record contained two identical emails from respondent's counsel forwarding the record of appeal, dated 19th June and 19th July 2024. The earlier email did not disclose the signatory's name while the later one did, lending authenticity to service on 19th July 2024, which the applicants' counsel admitted. Nothing suggested a re-forwarding request in the interim. Service therefore occurred on 19th July 2024, making the 26th July 2024 Motion compliant with the proviso to rule 86.

p. 3
02

Validity of the respondent's notice of appeal

Holding

The notice of appeal dated 15th February 2024, which was served but never lodged in Court, was of no legal or procedural effect; the only notice on record was lodged on 5th March 2024, five days out of time and without leave, and is incompetent.

Reasoning

Rule 77(2) requires a notice of appeal to be lodged in the registry within fourteen days of the impugned decision. A notice served but not lodged does not take effect. The only notice capable of scrutiny was lodged on 5th March 2024, five days late, with no evidence of leave to appeal out of time. Citing Daniel Nkirimpa Monirei v Sayialel Ole Koilel, the Court held that failure to serve within time gives a party a false belief that the matter is concluded, occasioning prejudice that cannot be countenanced in a fair process.

p. 3
03

Whether the record of appeal was filed and served within the prescribed period

Holding

The record of appeal was filed 10 days out of time without leave or a certificate of delay; in any event, the appeal built on an incompetent notice of appeal is bereft of foundation and equally incompetent.

Reasoning

Rule 84(1) requires an appeal to be instituted by lodging the record of appeal within sixty days of the notice of appeal. With the notice lodged on 5th March 2024 and the record filed on 15th May 2024, the filing exceeded the sixty days by 10 days, without leave of the Court or a certificate of delay. Further, because the notice of appeal itself was liable to be struck out, the substantive appeal lacked the requisite foundation and could not stand.

p. 4

Legal principles established

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  • Lodging the Notice of Appeal with the Court registry is a crucial step in initiating the appeal process; a notice of appeal does not take effect solely upon service if not lodged with the Court.
  • 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 record of appeal; where the record was served later than alleged, a Motion filed within 30 days of the effective service is in time.
  • A notice of appeal lodged out of time without leave of the Court is incompetent and strikes at the foundation of the appeal; the record of appeal built upon it is equally incompetent.

Court orders

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  1. 1.The applicants' Notice of Motion dated 26th July 2024 is allowed as prayed
  2. 2.The respondent's notice of appeal and record of appeal are struck out
  3. 3.The costs of the application shall be borne by the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Jurisdiction invoked
Rules 77(1) and (2), 79(1), 84, 85, 86 and 89(1)(h) and (i) of the Court of Appeal Rules, 2022 (inherent/appellate jurisdiction over the Court of Appeal's own process)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

To our mind, lodging the Notice of Appeal with the Court registry is a crucial step in initiating the appeal process.
p. 3Necessity of lodging a notice of appeal in the registry
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.
p. 4Notice of appeal as a jurisdictional pre-requisite (quoting Apungu Arthur Kibira v IEBC)
Failure to serve a party with a Notice of Appeal within the time prescribed by law gives a party false belief that the matter has been concluded, only to be ambushed later with the record of appeal in which the said notice is tucked away somewhere in the record.
p. 4Purpose of timely service of a notice of appeal (quoting Daniel Nkirimpa Monirei v Sayialel Ole Koilel)
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.
p. 4Final orders of the Court

Issues in the judgment

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minor

The judgment states 'citing a host of 15 judicial authorities, which we have duly considered' but the submissions are dated '2nd April 2022', which predates the notice of appeal and Motion (2024) - an apparent typographical error in the date.

minor

The judgment also refers to written submissions and a digest of authorities by respondent's counsel 'dated 26th March 2024', filed in reply to a Motion dated 26th July 2024 - the date appears to be an error, and the 15 cited authorities are not individually named in the judgment.

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, "Khonde & another v Ngomeni Swimmers Ltd (Civil Appeal (Application) E013 of 2024) [2025] KECA 1859 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1859/eng@2025-10-24

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