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Court of AppealAllowedNot stated in the judgment

Mutinga v Joreth Limited & 3 others (Civil Appeal (Application) E136 of 2021) [2026] KECA 145 (KLR)

Court of Appeal
30 January 2026
1,491 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out an appeal because its record was served late without permission, confirming these deadlines are strictly enforced.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal, Nairobi, on a Notice of Motion dated 22nd June 2021 by Peter Wambugu Mwangi, the 2nd respondent in the appeal, seeking to strike out the memorandum and record of appeal filed by Mutuku Mutinga, the appellant. The application was brought under Rule 84 of the Court of Appeal Rules, 2010 (now Rule 86 of the 2022 Rules), on the grounds that the record of appeal was served out of time and without leave, and that no valid certificate of delay availed the appellant. The appellant did not respond despite service. The Court first confirmed its own competence to entertain the motion, holding that because the record of appeal was served on 10th June 2021 and the motion was filed on 22nd June 2021, it fell within the thirty-day window in Rule 86. On the merits, the Court noted that the judgment appealed against was delivered on 22nd November 2013, and that the record of appeal dated 18th March 2021 was served outside the prescribed period with no evidence of leave. Relying on its own decision in Pradeep Harish Hindocha v Catherine Matei Chena, the Court held that the service requirement is mandatory and that an appeal not served in compliance with the rule is incompetent and liable to be struck out under Rule 86(b). It reinforced this with the timeliness dictum from Martin Kabaya v David Mungania Kiambi. The Court allowed the application and struck out the record of appeal with costs to the applicant. The decision below was not disturbed, as the Court dealt only with the competence of the appeal.

Questions the Court framed

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

  1. 1.Whether the application to strike out the record of appeal was filed within the thirty-day window prescribed by Rule 86
  2. 2.Whether the record of appeal, served on 10th June 2021 outside the prescribed time and without leave, was incompetent and liable to be struck out

Key legal issues

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01

Timeliness of the striking-out application under Rule 86

Holding

The application was competent because it was filed within thirty days of service of the record of appeal.

Reasoning

Rule 86 requires an application to strike out a notice of appeal or record of appeal to be brought within thirty days of service of the notice or record. The record of appeal was filed on 18th March 2021 and served on 10th June 2021; the motion was filed on 22nd June 2021, within the thirty-day window, so the application was properly before the Court.

p. 2
02

Competence of a record of appeal served out of time without leave

Holding

A record of appeal served outside the seven days prescribed by the Rules, without leave, renders the appeal incompetent and the record is struck out.

Reasoning

The judgment was delivered on 22nd November 2013; the record of appeal dated 18th March 2021 was served on 10th June 2021 with no evidence of leave to serve out of time. Adopting the Hindocha dictum, the service rule is mandatory, so the appeal was not competent and the record fell to be struck out under Rule 86(b).

p. 3

Legal principles established

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  • Rule 92(1) (formerly Rule 90(1)) is mandatory: a record of appeal must be served before it is lodged or within seven days of being lodged, failing which the appeal is incompetent and liable to be struck out under Rule 86(b).

Court orders

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  1. 1.The record of appeal dated 18th March 2021 is struck out with costs to the applicant payable by the appellant/respondent

The bench

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

majority
majority
majority
Jurisdiction invoked
Rule 86 of the Court of Appeal Rules (inherent supervisory jurisdiction over competence of appeals before the Court); application by Notice of Motion under Rule 84 of the Court of Appeal Rules, 2010 (now Rule 86 of the 2022 Rules)

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.

The record of appeal dated 18th March 2021 is hereby struck out with costs to the applicant payable by the appellant/respondent.
p. 4Final orders - striking out of record of appeal
the rule is couched in mandatory terms. An appellant must comply with the provision lest the appeal is rendered incompetent and fall prey to being struck out pursuant to the provisions of rule 86(b).
p. 3Mandatory nature of the service-of-record rule
A justice delayed is a justice denied.
p. 4Timeliness of judicial proceedings

Issues in the judgment

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minor

The judgment quotes Rule 77(2) as prescribing a fourteen-day period for lodging a notice of appeal, while the Court assesses the record of appeal against a seven-day service period under the same Rule without reconciling the two provisions or clearly identifying the subrule governing service of the record.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mutinga v Joreth Limited & 3 others (Civil Appeal (Application) E136 of 2021) [2026] KECA 145 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/145/eng@2026-01-30

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