Reuben Musyoki Muli v Kenya Commercial Bank Limited & 1 other
The bottom line
#Kenya's Court of Appeal struck out an appeal filed nearly two years late because the appellant never proved the required steps, blaming his lawyer wasn't enough.
What this practically means
#Executive summary
#Key legal issues
#Proof of service of the notice of appeal under rule 77(1)
The appellant failed to prove service of the notice of appeal within seven days; even on his own version service on 7th September 2020 was outside the period, with no extension of time sought or obtained.
The burden shifted to the appellant once service was denied on oath. He filed no replying affidavit and no affidavit of service; the alleged stamp was illegible and of unknown origin, and written submissions are not evidence. Even accepting the stamp, service roughly two months after lodgment breached rule 77(1), and no leave to extend time was obtained.
Benefit of the certificate of delay under rule 82
Having failed to demonstrate service of the letter bespeaking proceedings, the appellant could not rely on the certificate of delay; the appeal was filed approximately 644 days late without leave and is incompetent.
The proviso to rule 82 excludes only the period certified where the appellant applied for proceedings in writing and served the request under rule 82(2). Following Patrick Kiruja Kithinji v Victor Mugira Marete, time began running uninterrupted from 8th July 2020 and expired on 16th September 2020. Filing on 12th April 2022 without extension of leave removed the court's jurisdiction, a defect not curable under article 159.
Mistake of counsel and litigant's responsibility
The inadvertence-of-counsel explanation was unsupported and did not excuse the default; a case belongs to the litigant, who must show diligence.
While Belinda Murai holds that a mistake is a mistake, the principle requires sufficient material explaining the mistake. There was no affidavit from the advocate concerned, and no evidence that the appellant followed up his appeal during the long interval. Habo Agencies confirms litigants must show interest in their cases even when represented.
Legal principles established
#- Service of a notice of appeal within seven days under rule 77(1) and proof of service of the letter bespeaking proceedings under rule 82(2) are mandatory steps governing the institution of an appeal; non-compliance is not curable under article 159 of the Constitution and renders an appeal filed out of time without leave incompetent.
- An appellant who does not serve the letter requesting proceedings upon the respondent cannot invoke the proviso to rule 82 and the certificate of delay to exclude time; time runs uninterrupted from lodgment of the notice of appeal.
- Once a respondent specifically denies service on oath, the evidential burden shifts to the appellant to prove service, which cannot be discharged by a legible-challenged stamp or by written submissions alone.
- Blaming an advocate's mistake does not afford a blanket excuse; the litigant must place sufficient material explaining the mistake and demonstrate diligence in prosecuting the case.
Court orders
#- 1.The notice of appeal dated 8th July 2020 is struck out with costs to the applicant
- 2.The record of appeal dated 8th April 2022 and filed on 12th April 2022 is struck out with costs to the applicant
- 3.The applicant's notice of motion dated 10th May 2022 is allowed
- On appeal from
- High Court of Kenya
- High Court Commercial Case No. 339 of 2016, Reuben Musyoki Muli v Kenya Commercial Bank Limited & UAP Life Assurance Company Limited
- Jurisdiction invoked
- Rules 42(1), 43, 77(1), 82(1) and (2) and 84 of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Reuben Musyoki Muli v Kenya Commercial Bank Limited & 1 other", Case Analysis (2026). Nairobi Civil Appeal No. E212 of 2022 (Notice of Motion dated 10th May 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1245/eng@2026-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.