CMM v MN (Civil Application E079 of 2025) [2026] KECA 985 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a certificate of delay from the High Court protects appellants who act promptly, so the attempt to kill the appeal failed.
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- 1.Whether the respondent's notice of appeal dated 22nd April 2025 should be deemed withdrawn for failure to institute the appeal within the appointed time under rule 84
- 2.Whether the certificate of delay issued by the Deputy Registrar brought the institution of the appeal within the proviso to rule 84(1)
- 3.Which version of the High Court proceedings is the authentic record
Key legal issues
#Effect of the proviso to rule 84(1) and a certificate of delay on the deemed-withdrawal regime of rule 85
The respondent was saved by the proviso: she applied for certified proceedings within time, served the asking letter, and a certificate of delay confirmed 290 days of preparation, so the appeal was instituted within time.
Rule 84(1) requires institution of an appeal within sixty days of the notice of appeal, but the proviso excludes the time certified by the registrar as required for preparation and delivery of the copy of proceedings, provided the application for the copy was in writing and served. The Deputy Registrar's certificate of delay dated 27th January 2026 confirmed 290 days of preparation. On receipt of the proceedings the respondent filed her memorandum and record of appeal on 29th January 2026, so the appeal was properly before the Court and the notice of appeal could not be deemed withdrawn.
Relevance of the existence of the record of appeal at the time the Court is moved
The presence or absence of a record of appeal when the Court is moved is a determining factor; since the appeal had actually been filed when the application was heard, the deeming application failed.
The Court noted it was undisputed that at the time of hearing the application the respondent had filed her appeal, referencing Civil Appeal No. E012 of 2026. Relying on its decision in Esther Anyango Ochieng v Transmara Sugar Company, the Court treated the presence of the record of appeal as decisive on whether the appeal was properly before it.
Authenticity of competing versions of the High Court proceedings
The only authentic record is that certified by the Deputy Registrar with a certificate of delay; a party's privately obtained version cannot displace it.
The applicant's counsel relied on a version of proceedings he claimed to have served on the respondent. The Court rejected this, holding that only one record of court proceedings exists and it is the one containing a certificate of delay issued by the Deputy Registrar of the High Court.
Legal principles established
#- Where an appellant applies in writing for a copy of the proceedings within thirty days of the decision and serves that application on the respondent, the time certified by the registrar as required for preparation of the copy is excluded in computing the time for instituting the appeal.
- There can only be one authentic record of court proceedings, namely the one containing a certificate of delay issued by the Deputy Registrar of the superior court.
- A party who institutes an appeal promptly upon receipt of certified proceedings, after delay certified by the registrar, has not slept on the right of appeal and the notice of appeal cannot be deemed withdrawn under rule 85.
Court orders
#- 1.The applicant's notice of motion dated 7th November 2025 seeking withdrawal of the notice of appeal is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- Eldoret Matrimonial Cause No. E002 of 2024
- Jurisdiction invoked
- Court of Appeal Rules, rules 84 and 85 (inherent motion jurisdiction over notice of appeal)
Relief refused
#Withdrawal/deeming of the respondent's notice of appeal dated 22nd April 2025 as withdrawn
The respondent applied for certified proceedings within time, served the asking letter, obtained a certificate of delay showing 290 days of preparation, and filed her appeal promptly upon receipt, falling within the proviso to rule 84(1); the appeal had in fact been filed.
Costs
The applicant's application is dismissed with costs to the respondent.
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.
The applicant's application is therefore without merit and is dismissed with costs to the respondent.
Such a party cannot be said to have slept on her right of appeal; her case falls neatly into the proviso to rule 84(1) of the Court of Appeal Rules.
there can only be one record of court proceedings, and this is the one containing a certificate of delay issued by the Deputy Registrar of the High Court.
the presence or absence of a record of appeal at the time the Court is moved under rule 83 is a determining factor.
Issues in the judgment
#The respondent's replying affidavit is stated to have been sworn on 1st May 2026, and her written submissions are dated 1st May 2026, yet the motion was dated 7th November 2025 and the ruling delivered 22nd May 2026; the affidavit date is consistent but the submissions date falls after the January 2026 events and immediately before delivery - internally plausible but the record also shows the applicant claimed proceedings were ready by 5th August 2025 while the Deputy Registrar certified proceedings were only ready on 26th January 2026, a direct conflict between the parties' accounts of the record.
The application is described as seeking withdrawal of a notice of appeal 'dated 22nd April 2025' filed by the respondent, yet the applicant is the moving party describing the respondent's notice - the numbering of the motion itself is not given in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CMM v MN (Civil Application E079 of 2025) [2026] KECA 985 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/985/eng@2026-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.