Hussein Suleiman Masila & 2 others v Krotonite Enterprises Limited
The bottom line
#Kenya's Court of Appeal struck out a notice of appeal because the appellant failed to serve it on the other side within seven days, ending the appeal entirely.
What this practically means
#Executive summary
#Key legal issues
#Whether the notice of appeal was served within the seven-day period under rule 77(1)
It was not; the applicants only became aware of the notice over forty days after lodgment when served with the stay application.
The notice was lodged on 25th September 2024 but the applicants were only served with it annexed to the stay application on 5th November 2024, well beyond the seven days prescribed by rule 77(1). The respondent offered no satisfactory explanation; the concession that a wrong email address was used was not regularized.
Whether the notice of appeal should be struck out under rule 86
Yes; failure to take an essential step (service) within the prescribed time, without justification, is fatal and warrants striking out.
Rule 86 permits striking out where an essential step has not been taken within the prescribed time. The court adopted the Monirei dictum that failure to serve within the prescribed time fosters ambush litigation and causes prejudice, and that rule 77(1) is mandatory. The strike-out application was itself filed within the 30-day window of rule 86.
Legal principles established
#- Service of a notice of appeal within the seven days prescribed by rule 77(1) is mandatory; unexplained failure to serve within that period is a fatal procedural lapse justifying striking out under rule 86.
- An inadvertent error in the email address used for service does not excuse non-service; the advocate should instead have sought leave to serve out of time.
Court orders
#- 1.The notice of appeal dated 19th September 2024 is struck out
- 2.The costs of the application shall be borne by the respondent
- On appeal from
- Environment and Land Court of Kenya at Mombasa
- ELC Misc. Application No. 31 of 2018 (O.S)
- Jurisdiction invoked
- Rule 86 of the Court of Appeal Rules, 2022 (application to strike out a notice of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hussein Suleiman Masila & 2 others v Krotonite Enterprises Limited", Case Analysis (2025). Civil Application E125 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2332/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.