Magnate Ventures Ltd v Majestic Security Services Ltd & 4 others (Civil Appeal (Application) E216 of 2025) [2025] KECA 2042 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a record of appeal filed 10 days late, confirming court-ordered deadlines cannot be missed without permission.
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 lodged out of time under rule 86 and the proviso thereto
- 2.Whether the notice of appeal was incompetent for non-compliance with the proviso to rule 84 and for non-service of the letter bespeaking proceedings
- 3.Whether the record of appeal filed outside the 45 days directed by the Court was incompetent
- 4.Whether the pendency of a withdrawn application for review barred the appeal
- 5.Whether the self-executing restraining orders of 29th January 2025 had lapsed and required rescission
Key legal issues
#Timeliness of application to strike out notice of appeal under rule 86
The application filed 7th April 2025 against a notice served 6th March 2024 was far beyond the mandatory 30 days, so the notice of appeal could not be challenged
Rule 86 requires a striking-out application within 30 days of service of the notice of appeal, and the proviso is in mandatory terms. The applicant served on 6th March 2024 but moved only on 7th April 2025, over a year later. The Court therefore declined to pronounce on the competence of the notice of appeal itself, noting that the applicant had a different and valid route against the record of appeal.
Competence of a record of appeal filed outside a court-ordered 45-day period
The record of appeal filed 55 days after the order of 29th January 2025 was incompetent, having been filed out of time without leave
The Court's order directing filing of the record within 45 days was express. The record was filed on the 55th day. Reasons such as late receipt of the order or mistake of counsel are matters for an extension-of-time application, which was never made. Filing out of time without leave is not a mere technicality; the record was therefore struck out.
Whether seeking review bars an appeal against the same judgment
No bar arose because the application for review was withdrawn before it was heard
The applicant argued that a party who applies for review of the ELC judgment cannot appeal against it. The Court rejected the contention on the facts, since the review application had been withdrawn before hearing, so there was no subsisting review to conflict with the appeal. The respondent's deeming argument about the validity of the notice of appeal also failed because the earlier injunction application never addressed competence.
Effect of a self-executing restraining order on default
The restraining orders lapsed automatically when the record was not filed within 45 days; no rescission was necessary
The order of 29th January 2025 provided that on failure to file the record within 45 days the restraining orders would automatically lapse. Default having occurred, the orders lapsed by their own terms. Independently, striking out the record of appeal removed the appeal that underpinned the orders, so the rescission prayer required no separate ruling.
Legal principles established
#- An application to strike out a notice of appeal must be brought within 30 days of service of the notice of appeal as required by rule 86; out of time, the challenge is incompetent
- A record of appeal filed out of time without leave of the Court, including default on a self-executing direction to file within a fixed period, is incompetent and must be struck out; excuse and mistake of counsel are matters for extension of time, not defences to striking out
- Failure to file an appeal within the prescribed time is not a mere technicality curable under the overriding objective
- A party alleging that a notice or record of appeal is incompetent must invoke rule 86; and a direction to file a record of appeal on an injunction application is not a determination of the competence of the notice of appeal
Court orders
#- 1.The record of appeal filed on 25th March 2025 is struck out with costs to the applicant
- 2.Refusal of the prayer to strike out the notice of appeal (application out of time under rule 86)
- 3.No formal order of rescission of the 29th January 2025 orders, which had automatically lapsed by their own terms
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nairobi
- Not stated in judgment
- Jurisdiction invoked
- Inherent jurisdiction of the Court of Appeal under rule 86 of the Court of Appeal Rules (application to strike out notice of appeal and record of appeal)
Relief refused
#Striking out of the notice of appeal dated 26th February 2024
The application to strike out was filed far beyond the 30 days prescribed by rule 86 after service of the notice of appeal
Formal rescission of the order of injunction granted on 29th January 2025
The order was self-executing and lapsed automatically on default; and with the record of appeal struck out, no appeal exists to underpin the orders
Costs
Costs of the application awarded to the applicant (Magnate Venture Ltd): the record of appeal 'is hereby struck out 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, the application dated 7th April 2025 succeeds to the extent that the record of appeal filed on 25th March 2025 is hereby struck out with costs to the applicant. It is so ordered.
Clearly, therefore, the record of appeal is incompetent because it was filed out of time without leave of the Court.
this Court held that failure to file an appeal within the prescribed time is not a mere technicality amenable to cure under the overriding objective.
This Court has held time without number that a party who alleges that a notice of appeal or a record of appeal is incompetent must resort to the provisions of rule 86 of the Court's Rules.
Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days after the date of service of the notice of appeal or record of appeal, as the car may be.
Issues in the judgment
#Rule 86 proviso as quoted contains an apparent typographical error ('as the car may be', presumably 'as the case may be'), reproduced here verbatim from the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mavoloni Company Ltd v Tanathi Water Services Board (Civil Appeal E062 of 2020) [2026] KECA 1133 (KLR)[2026] KECA 1133 (KLR)12 Jun 2026followed
Cite this brief
#Cite this brief
Caselaw, "Magnate Ventures Ltd v Majestic Security Services Ltd & 4 others (Civil Appeal (Application) E216 of 2025) [2025] KECA 2042 (KLR)", Case Analysis (2025). Not stated in judgment (motion dated 7th April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2042/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.