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Court of AppealOtherCivil Application (as stated in the motion: application to strike out the record of appeal in the appeal from Nairobi HCCA No. 257 of 2011)

Kenya Power & Lighting Co Ltd v Mwanthi (Civil Appeal (Application) E674 of 2021) [2026] KECA 1040 (KLR)

Court of Appeal
29 May 2026
2,545 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out Kenya Power's appeal because it was filed 14 months late without first asking for an extension of time.

What this practically means

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Executive summary

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By a motion dated 10th May 2022 under rules 42, 82 and 84 of the former Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act, the respondent sought to strike out the appellant's record of appeal and to have Ksh. 962,000 deposited as a stay condition released towards satisfaction of the decree in Nairobi HCCA No. 257 of 2011. The High Court had decided the underlying appeal on 21st January 2020. Proceedings were ready on 2nd July 2020, but the appellant paid the fees on 15th July 2020, collected them on 6th August 2021, and filed the record of appeal on 22nd November 2021 - some 14 months beyond the 60-day window in rule 84(1), without leave. The appellant relied on the overriding objective, article 159(2)(d) of the Constitution and the majority decision in Salat v IEBC, arguing the strike-out power was discretionary and no prejudice would be suffered. Counsel conceded no steps were taken to regularise the defect even after the striking-out application was served or after the respondent obtained extension of time to bring it. The court (Kiage, Ngetich and Radido Okiyo, JJA, in one judgment) restated Kiage, JA's minority reasoning in Salat and the Supreme Court's affirmance: procedural rules and timelines are binding, article 159 was never meant to create an anarchical free-for-all, and extension of time must first be sought. Finding no sufficient answer to the motion, the court struck out the record of appeal with costs as prayed. The decision binds subordinate courts and tribunals on the mandatory force of appellate timelines and the limits of the oxygen principle.

Questions the Court framed

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

  1. 1.What is the effect of the appellant's failure to comply with rule 84(1) of the Court's Rules by lodging the record of appeal out of time?
  2. 2.Whether the court should strike out the record of appeal for failure to take an essential step within the prescribed time, notwithstanding the overriding objective and article 159(2)(d) of the Constitution
  3. 3.Whether the sum of Ksh. 962,000 deposited in court as a condition for stay of execution should be released to the respondent towards satisfaction of the decree in HCCA No. 257 of 2011

Key legal issues

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01

Effect of failure to comply with rule 84(1) on the competency of an appeal

Holding

The record of appeal filed more than 14 months out of time, without prior leave, is incompetent and must be struck out on application under rule 86.

Reasoning

The court found it common ground that the record was lodged outside the 60-day window. Although the overriding objective and article 159(2)(d) demand broad justice, the appellant never sought extension of time under rule 4 even after the striking-out application exposed the defect, and counsel conceded no regularisation steps were taken. The court adopted Kiage, JA's minority reasoning in Salat and the Supreme Court's affirmance that procedural timelines are binding and extension must be sought before acting.

p. 5
02

Whether the oxygen principle and overriding objective excuse non-compliance with mandatory procedural timelines

Holding

No. Article 159(2)(d) was never meant to overthrow rules of procedure; courts must not provide succour to parties who show scant respect for rules and timelines.

Reasoning

The court restated Kiage, JA's minority opinion in Salat, endorsed by the Supreme Court in [2014] KESC 12 (KLR), that rules and timelines make adjudication fair, just, certain and even-handed. Sympathy with an appellant, even on an important subject matter, does not of itself save an incompetent appeal; the greater the importance, the greater the scrupulous compliance required.

p. 4

Legal principles established

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  • An appeal must be instituted within 60 days under rule 84(1); failure to lodge the record of appeal within that period without first obtaining an extension of time renders the record liable to be struck out on application under rule 86.
  • Where the law prescribes a time for doing an act, a party must first obtain an extension of time before proceeding; article 159(2)(d) and the overriding objective cannot be used to bypass procedural rules.
  • Filing a record of appeal is an essential step within the meaning of rule 86 and failure to take it within the prescribed time invites striking out.

Court orders

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  1. 1.The record of appeal is struck out with costs as prayed
  2. 2.Implied grant of the motion dated 10th May 2022 (the application is granted)

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
Nairobi HCCA No. 257 of 2011
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and rules 4, 84 and 86 of the Court of Appeal Rules

Relief refused

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Appellant's request to have the appeal proceed to hearing on its merits under the overriding objective and article 159(2)(d)

No sufficient explanation for the inordinate, unexplained delay and failure to regularise the defect; the court declined to excuse non-compliance with the Rules

p. 5

The appellant's invocation of the majority decision in Salat v IEBC

The court instead adopted Kiage, JA's minority sentiments and the Supreme Court's affirmance that timelines must be complied with and extension of time sought before acting

p. 5

Costs

Costs of the application awarded to the respondent, as prayed: the court struck out the record of appeal "with costs as prayed"

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.

Ultimately, we do not find the appellant to have provided a suficient answer to the striking out motion. We accordingly grant the same and strike out the record of appeal with costs as prayed.
p. 5Disposition - striking out of record of appeal
I am not in the least persuaded that article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an eficient, proportionate and cost- efiective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice.
p. 4Limits of the oxygen principle
where the law provides for the time within which something ought to be done, if that time lapses, one need to first seek extension of that time before he can proceed to do that which the law requires.
p. 5Obligation to seek extension of time first (Supreme Court in Salat)
It has never been the practice that sympathy with an appellant on account of the importance of the subject matter of an appeal would, of and in itself, save an incompetent appeal.
p. 4No sympathy saves an incompetent appeal

Issues in the judgment

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minor

Internal inconsistency in dates: the appellant's supporting affidavit is described as sworn on 19th March 2026, after the motion of 10th May 2022 and shortly before the 29th May 2026 delivery date; the chronology as drafted reads unusually.

minor

The judgment states the affidavit confirmed delivery on 21st January 2020 while earlier paragraphs describe it as the judgment in the High Court appeal; the respondent's supporting affidavit is said to assert he was granted leave 'to file the instant application out of time' but paragraph 14 refers to leave to 'file the instant appeal out of time' - an apparent slip in wording.

minor

The ruling of 28th April 2022 is attributed to Laibuta, JA in one passage while paragraph 11 refers only to the respondent lodging an application for extension of time 'which application was granted by Laibuta, JA' without dates; no material contradiction but wording varies.

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, "Kenya Power & Lighting Co Ltd v Mwanthi (Civil Appeal (Application) E674 of 2021) [2026] KECA 1040 (KLR)", Case Analysis (2026). Civil Application (as stated in the motion: application to strike out the record of appeal in the appeal from Nairobi HCCA No. 257 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1040/eng@2026-05-29

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