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Court of AppealPartially AllowedCivil Application E705 & E585 of 2025 (Consolidated)

Mitsumi Computer Garage Ltd v Freight in Time Ltd & 4 others (Civil Application E705 & E585 of 2025 (Consolidated)) (13 February 2026) (Reasons) [2026] KECA 246 (KLR)

Court of Appeal
13 February 2026
3,009 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out a notice of appeal served late, confirming that missing procedural deadlines can destroy an appeal entirely.

What this practically means

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Executive summary

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These are the reasons of the Court of Appeal at Nairobi (W. Karanja, A. O. Muchelule and W. Korir, JJA) for its decision of 17th December 2025 on two consolidated applications arising from a ruling of the High Court (F. Gikonyo, J.) dated 18th September 2025 in Milimani HC COMM No. 367 of 2016. Freight In Time Ltd had sought a stay of proceedings pending its intended appeal (Civil Application No. E585 of 2025), anchored on a Notice of Appeal dated 24th September 2025. Mitsumi Computer Garage Ltd applied (Civil Application No. E705 of 2025) to strike out that Notice of Appeal on the ground that, although lodged within time, it was served on the applicant and the 2nd to 5th respondents outside the seven days prescribed by rule 79(1) of the Court of Appeal Rules, 2022. Freight In Time Ltd conceded the late service but blamed counsel's inadvertence and invoked rule 4 and Article 159 of the Constitution. The Court identified the sole issue as whether a valid notice of appeal was on record. It held that the late service rendered the notice incompetent, that blame on counsel did not excuse non-compliance, and that enlargement of time could not be obtained through a replying affidavit without a proper rule 4 application first heard by a single Judge. The notice of appeal was struck out, and with it the rule 5(2)(b) stay application, since the Court's jurisdiction under that rule arises only upon filing of a valid notice of appeal. Costs were awarded to Mitsumi Computer Garage Ltd, Tandu Alarms Systems Ltd and GA Insurance Ltd on the allowed application, the Court noting that counsel had put the parties through an unnecessary hearing.

Questions the Court framed

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

  1. 1.Whether there was a valid notice of appeal on record, given that the Notice of Appeal dated 24th September 2025 was served outside the seven days prescribed under rule 79(1) of the Court of Appeal Rules, 2022
  2. 2.Whether Freight In Time Ltd's application for stay of proceedings under rule 5(2)(b) could survive the striking out of the Notice of Appeal
  3. 3.The question of costs of the two applications

Key legal issues

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01

Validity of a notice of appeal served outside the seven-day period prescribed by rule 79(1)

Holding

The Notice of Appeal, though lodged within time, was incompetent because it was served on the applicant and the 2nd to 5th respondents outside the seven days stipulated in rule 79(1); the 1st respondent therefore had no competent notice of appeal.

Reasoning

The 1st respondent conceded non-service within the prescribed period. The Court relied on Kaduda vs. Douglas, Kali Security and Patrick Kiruja Kithinji to hold that service of the notice of appeal within the timelines in the Rules is mandatory and that non-compliance deprives the document of competence. Blaming the advocate did not excuse the delay, and the rules exist to level the playing ground, not to encumber justice.

p. 4
02

Whether counsel's inadvertent mistake and reliance on substantive justice under Article 159 could save the notice of appeal

Holding

No. Non-compliance could not be cured by Article 159, and a party who fails to comply with the rules does so at their own peril.

Reasoning

The Court held that an appeal filed out of time is not curable under Article 159, following Patrick Kiruja Kithinji vs. Victor Mugira Marete. The 1st respondent had the alternative of retreating to the procedural framework of the Rules to regularise the notice but did not do so. Rules are harbingers of justice, not an unnecessary burden, and a party ignores them at their own peril.

p. 5
03

Consequence of striking out the notice of appeal on the rule 5(2)(b) application for stay of proceedings

Holding

Once the notice of appeal was struck out, the stay of proceedings application under rule 5(2)(b) had no foundation and was struck out.

Reasoning

Under rule 5(2)(b) the Court is seized of jurisdiction only once a notice of appeal is filed. Relying on Safaricom Limited vs. Ocean View Beach Hotel Limited and Sawe vs. IEBC, the Court held that a valid notice of appeal is the foundation of the interlocutory jurisdiction; without it, the stay application could not stand and fell with the notice.

p. 5
04

Costs of the two applications

Holding

Costs followed the event and were awarded to the respondents in attendance in the allowed application.

Reasoning

Although the Court acknowledged the need for empathy, counsel for Freight In Time Ltd, having been alerted to the difficulty, opted to press on and request a reasoned ruling, putting the other parties through an unnecessary hearing. The Court therefore applied the general rule that costs follow the event, awarding costs to Mitsumi Computer Garage Ltd, Tandu Alarms Systems Ltd, and GA Insurance Ltd on Civil Application No. E705 of 2025.

p. 6

Legal principles established

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  • An appellant must serve the notice of appeal on affected parties within seven days of lodgment as required by rule 79(1); failure to do so renders the notice of appeal incompetent.
  • A defectively served notice of appeal cannot invoke the Court's jurisdiction, including its interlocutory jurisdiction under rule 5(2)(b); jurisdiction under rule 5(2)(b) arises only upon a valid notice of appeal.
  • A party cannot invoke Article 159 of the Constitution to circumvent clear rules of the Court, and enlargement of time cannot be obtained through a replying affidavit without a proper rule 4 application first heard by a single Judge.

Court orders

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  1. 1.Civil Application No. E705 of 2025 allowed and the Notice of Appeal dated 24th September 2025 struck out
  2. 2.Civil Application No. E585 of 2025 struck out
  3. 3.Costs awarded to Mitsumi Computer Garage Ltd, Tandu Alarms Systems Ltd, and GA Insurance Ltd in respect of Civil Application No. E705 of 2025

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi (Milimani)
Milimani HC COMM No. 367 of 2016
Jurisdiction invoked
Inherent interlocutory jurisdiction of the Court of Appeal under rules 34, 79 and 85(1) of the Court of Appeal Rules, 2022
Consolidated with
Civil Application No. E585 of 2025

Relief refused

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Freight In Time Ltd's application for stay of proceedings in HC COMM Case No. 367/2016 pending its intended appeal (Civil Application No. E585 of 2025)

The application under rule 5(2)(b) had no foundation once the Notice of Appeal anchoring it was struck out, as the Court's jurisdiction under rule 5(2)(b) arises only upon filing of a notice of appeal

p. 5

Freight In Time Ltd's invocation of rule 4 to enlarge time for service of the Notice of Appeal by way of a replying affidavit

An application under rule 4 must first be heard and determined by a single Judge; enlargement of time cannot be sought through a replying affidavit without a proper application

p. 5

Costs

Costs awarded to Mitsumi Computer Garage Ltd, Tandu Alarms Systems Ltd, and GA Insurance Ltd in respect of Civil Application No. E705 of 2025 (the allowed application); costs to the respondents in attendance in the allowed application.

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.

An appellant must comply with the timelines provided in the Rules of the Court lest the documents filed out of time are rendered incompetent and fall prey to being struck out.
p. 4Mandatory timelines for service of notice of appeal
Rules are put in place not to encumber justice but to level the playing ground. They should not be seen as an unnecessary burden but as harbingers of justice. A party ignores rules at their own peril.
p. 5Importance of compliance with procedural rules
In our view whether or not an appeal is filed on time goes to the jurisdiction of this Court. It is trite that this Court has jurisdiction to entertain appeals filed within the requisite time and/or appeals filed out of time with leave of the Court. To hold otherwise would upset the established clear principles of institution of an appeal in this Court. Consequently, we find that an appeal filed out of time is not curable under Article 159.
p. 5Timeliness and jurisdiction; Article 159 no cure (quoting Patrick Kiruja Kithinji vs. Victor Mugira Marete)
It has been said time without number that in an application under Rule 5(2)(b) what gives the Court the jurisdiction to hear and determine the motion is the filing of the notice of appeal.
p. 5Rule 5(2)(b) jurisdiction dependent on notice of appeal
After hearing the applications and pursuant to rule 34(1) and (7) of the Court of Appeal Rules, 2022, we gave our decision allowing Civil Application No. E705 of 2025, thus striking out the Notice of Appeal dated 24th September 2025 and Civil Application No. E585 of 2025. We also awarded costs to the respondents in attendance in the allowed application.
p. 2Final orders/disposition

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, "Mitsumi Computer Garage Ltd v Freight in Time Ltd & 4 others (Civil Application E705 & E585 of 2025 (Consolidated))  (13 February 2026) (Reasons) [2026] KECA 246 (KLR)", Case Analysis (2026). Civil Application E705 & E585 of 2025 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/246/eng@2026-02-13

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