Kcb Bank Kenya Limited v Inyangu & another (Civil Appeal (Application) E235 of 2025) [2026] KECA 136 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed an attempt to strike out KCB Bank's appeal, confirming appeals filed within 60 days of receiving typed proceedings are on time.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether costs should be awarded against Joshua Nyamweya Oigara, Paul Rudishie Russo and Japheth Ochieng Achola for failing to institute an appeal within the appointed time after lodging a notice of appeal
- 2.Whether the 1st respondent's appeal should be struck out on the ground that no appeal lies (rule 86(a)), the applicant contending it was a second appeal under section 23 of the Access to Information Act
- 3.Whether the 1st respondent's appeal was filed out of time and without leave, having regard to rule 84 and the certificate of delay
Key legal issues
#Costs under rule 85 against defaulting notice-of-appeal parties
Refused; the three named individuals were not before the Court and no deeming application had been made; their inclusion in the notice of appeal appeared to be counsel's error since they had been struck out of the ELRC proceedings.
Rule 85 permits costs where a notice of appeal not prosecuted is deemed withdrawn, on the Court's own motion or on a party's application. The applicant sought only costs without seeking the deeming order, and the three individuals were not parties to the application, so the Court had no basis to make orders against them.
Whether no appeal lies (rule 86(a)) because the appeal is a second appeal under section 23 of the Access to Information Act
The appeal is a first appeal; the ELRC proceedings were an adoption application, and the impugned ruling declined a review application, so striking out under rule 86(a) fails.
The Court examined the trial court's proceedings and found that the applicant had sought adoption of the CAJ order as an order of the court, not an appeal under section 23. The 1st respondent then sought review, which was declined. An appeal against that ruling is therefore a first appeal, and the second-appeal limitation does not apply.
Whether the record of appeal was filed out of time and without leave
The appeal was properly on record; time for preparation of typed proceedings was excluded via the certificate of delay, and the record, fee and security were filed within 60 days of receipt of proceedings.
The notice of appeal was lodged within 14 days of the ruling. The 1st respondent applied for proceedings on the same day; although notified as ready on 15th November 2024, the file was in the judge's chambers until the stay ruling of 30th January 2025. Proceedings were supplied on 31st January 2025, and the record of appeal with security was filed on 28th March 2025, within the rule 84 period as computed with the certificate of delay.
Legal principles established
#- Where an application for a copy of the proceedings is made within thirty days of the decision, the time certified by the registrar as required for preparation of the copy is excluded in computing the 60-day period for instituting an appeal under rule 84
- Costs under rule 85 against a party who lodges a notice of appeal but fails to institute an appeal are payable only where the notice is deemed withdrawn on the Court's own motion or on application, and orders cannot be made against parties not before the Court
- A ruling declining an application for review of an order adopted by the ELRC, in proceedings that were not an appeal under section 23 of the Access to Information Act, gives rise to a first appeal to the Court of Appeal, not a second appeal limited to points of law
Court orders
#- 1.The application dated 14th April 2025 is dismissed with costs to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules, 2022 (rules 84, 85, 86) over an appeal against an ELRC ruling; application heard within Civil Appeal No. 235 of 2025
Relief refused
#Costs against Oigara, Russo and Achola under rule 85 for failure to institute an appeal within the appointed time
No application was made for the notice to be deemed withdrawn, and the three parties are not before the Court in the application
Striking out of the 1st respondent's appeal under rule 86(a)
The proceedings before the ELRC were not an appeal under section 23 of the Access to Information Act; the impugned ruling followed a declined application for review, so the appeal is a first appeal
Striking out of the appeal for filing out of time under rule 86(b)
Time was properly excluded on the certificate of delay; the record of appeal, fee and security for costs were filed within 60 days of receipt of proceedings
Costs in the ruling of 30th January 2025 (ELRC stay ruling)
That prayer is not one that can be addressed by this Court
Costs
The application dated 14th April 2025 is dismissed with costs to the 1st respondent (KCB Bank Kenya Limited)
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.
In the circumstances, we are satisfied that the present appeal is properly on record. Accordingly, we find that the application dated 14th April 2025 is devoid of merit. It is hereby dismissed with costs to the 1st respondent.
the Record of Appeal was filed on 28th March 2025, which was within 60 days of receipt of the proceedings. We further note that security for costs was deposited on the same date as the Record of Appeal was filed.
The proceedings before the ELRC were not an appeal under section 23 of the Access to information Act.
The applicant has not made an application for the notice by the three parties to be deemed as withdrawn. Further, the three parties are not before us in this application, and we cannot therefore make any order against them in the circumstances.
Issues in the judgment
#Typographical error in the date of the 1st respondent's review application, given as '29th February 202' in one passage and '29th February 2024' elsewhere
The provision of the Access to Information Act is cited inconsistently as 'section 23 A (3) and (5)' and 'section 23 (3) and (5)'
The panel signature block describes D. K. Musinga as 'JUDGE OF APPEAL' while also bearing '(PRESIDENT)'; the rank of President of the Court of Appeal is not consistently rendered
The ruling is dated 30th January 2026 and is described as a 'ruling' in the text, though it is the judgment on the application; also the prayer for 'costs in the ruling of 30th January, 2025' coincidentally matches the delivery date year-differently
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kcb Bank Kenya Limited v Inyangu & another (Civil Appeal (Application) E235 of 2025) [2026] KECA 136 (KLR)", Case Analysis (2026). Civil Appeal No. 235 of 2025 (application dated 14th April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/136/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.