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Court of AppealDismissedCivil Appeal No. E185 of 2024

Juja Coffee Exporters Ltd & 3 others v Bank of Africa Kenya Ltd & 4 others (Civil Appeal (Application) E185 of 2024) [2026] KECA 1580 (KLR)

Court of Appeal of Kenya
31 July 2026
2,641 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A late bid to strike out an appeal failed because Kenyan law allows only 30 days from service to file such an application.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Mombasa, delivered by Murgor, Laibuta and Ngenye-Macharia JJA, disposes of a Notice of Motion dated 23rd October 2024 by which Juja Cofiee Exporters Limited, T.S.S. Transporters Limited, T.S.S. Investment Limited and the Executors of the Estate of Tahir Sheikh Said Ahmed, the respondents in Mombasa Civil Appeal No. E185 of 2024, sought to strike out the Notice of Appeal dated 25th July 2024 and the Record of Appeal dated 10th September 2024 filed by Bank of Africa Limited, the appellant. The applicants complained of want of service of the Notice of Appeal on Kaab Investments Limited, of the Notice and Record of Appeal on I.F.I. Paradise Properties Limited and on Peter Nyaga Njoka and Hellen Wanjiru Nyaga, whose suit had been struck out by the impugned Environment and Land Court ruling of 24th July 2024, and of missing documents in the record. The court framed a single issue: whether the Notice and Record of Appeal ought to be struck out for want of service on those parties. It held that although the motion invoked the repealed Rule 84 of the 2010 Rules instead of Rule 86 of the 2022 Rules, the oxygen principle under Article 159(2)(d) of the Constitution cured that misdescription. Dispositive, however, was the proviso to Rule 86, which bars strike-out applications brought more than thirty days after service: the applicants admitted service of the Notice of Appeal on 25th July 2024 but filed the motion on 23rd October 2024, rendering it incompetent. The court further held that the applicants lacked locus standi to complain of non-service on parties left out of the appeal, and that the withdrawal of the appeal against the 2nd respondent rendered service on it superfluous. The motion was dismissed with costs to the 1st and 3rd to 5th respondents, leaving the Notice and Record of Appeal intact.

Questions the Court framed

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

  1. 1.whether the Notice of Appeal dated 25th July 2024 and the Record of Appeal dated 10th September 2024 ought to be struck out for want of service upon the 2nd and 5th respondents, and Peter Nyaga Njoka and Hellen Wanjiru Nyaga

Key legal issues

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01

Whether an application to strike out a notice of appeal or record of appeal filed more than 30 days after service is competent under the proviso to Rule 86 of the Court of Appeal Rules, 2022.

Holding

No. The 30-day window in the proviso to Rule 86 is mandatory and the court has no discretion to excuse non-compliance. The applicants admitted service of the Notice of Appeal on 25th July 2024, so the application should have been filed before 25th August 2024; filed on 23rd October 2024, it was incompetent and was dismissed.

Reasoning

Rule 86 allows a person affected by an appeal to apply to strike out the notice or the appeal, but its proviso bars any such application brought after the expiry of thirty days from service. Following Joyce Bochere Nyamweya and William Mwangi Nguruki, the court held the proviso mandatory, leaving no discretion to second-guess the framers' time frame. Time ran from service of the Notice of Appeal on 25th July 2024, so the deadline was 25th August 2024; the motion filed on 23rd October 2024 was outside it and incompetent.

p. 4
02

Whether invoking the repealed Rule 84 of the Court of Appeal Rules, 2010 instead of Rule 86 of the Court of Appeal Rules, 2022 rendered the application incompetent.

Holding

No. Applying the oxygen principle under Article 159(2)(d) of the Constitution and the overriding objective in Sections 3A and 3B of the Appellate Jurisdiction Act, failure to cite the correct provision does not of itself render an application incompetent, since the prayers were unambiguous and former Rule 84 was in similar terms to Rule 86.

Reasoning

The motion was hinged on Rule 84 of the repealed 2010 Rules, whereas the correct provision was Rule 86 of the 2022 Rules. The court applied Article 159(2)(d) of the Constitution, which requires justice to be administered without undue regard to procedural technicalities, reinforced by the overriding objective in Sections 3A and 3B of the Appellate Jurisdiction Act. Because the prayers were unambiguous and the old Rule 84 spelt out similar provisions, the applicants clearly intended the relief now provided by Rule 86.

p. 4
03

Whether the applicants, as respondents who did not appeal, could complain of want of service of the Notice and Record of Appeal on the 2nd and 5th respondents and on Peter Nyaga Njoka and Hellen Wanjiru Nyaga.

Holding

No. A party aggrieved by a decision chooses whom to appeal against; the applicants were not aggrieved and lacked locus standi on this front. Only the party left out of the appeal may complain of non-inclusion or non-service, and the participation of parties whose suit was struck out would not assist the applicants.

Reasoning

The applicants did not appeal against the impugned ELC ruling because they were not aggrieved by it; they were brought to court by the aggrieved appellants and so could not dictate against whom the appeal should be filed and served. Service complaints of this kind belong to the party left out of the appeal. As for Peter Nyaga Njoka and Hellen Wanjiru Nyaga, the suit against them had been struck out by the very ruling under appeal, so their participation could not assist the applicants.

p. 5
04

Whether service of the Notice and Record of Appeal on the 2nd respondent was necessary given the withdrawal of the appeal against it.

Holding

No. The 1st respondent withdrew the appeal against the 2nd respondent on 11th November 2024, and the 2nd respondent raised no objection; any service upon it would therefore have been superfluous, and the applicants could not speak for a non-party.

Reasoning

The 1st respondent deposed that it withdrew the appeal against the 2nd respondent when the stay application came up for hearing, and the 4th respondent's counsel confirmed the withdrawal without objection from the 2nd respondent. Since the appeal no longer ran against the 2nd respondent, service on it would have served no purpose. Similarly, the 5th respondent was shown by an exhibited email to have been served through its advocates, Muturi, Gakuo & Kibara Advocates, on 11th November 2024.

p. 5

Legal principles established

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  • An application to strike out a notice of appeal or record of appeal under Rule 86 of the Court of Appeal Rules, 2022 must be brought within 30 days of service of the notice or record; the window is mandatory and the court has no discretion to entertain an out-of-time application.
  • Citing a wrong or repealed procedural provision does not of itself render an application incompetent where the relief sought is unambiguous, per the oxygen principle in Article 159(2)(d) of the Constitution and the overriding objective in Sections 3A and 3B of the Appellate Jurisdiction Act.
  • Only the party aggrieved by a decision may choose whom to appeal against; a respondent who did not appeal lacks locus standi to complain of non-inclusion or non-service of the appeal on other parties, and it is the party left out of the appeal who may complain.

Court orders

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  1. 1.The Notice of Motion dated 23rd October 2024 was dismissed as incompetent, having been filed outside the stipulated timelines pursuant to Rule 86 of the Court of Appeal Rules, 2022.
  2. 2.Costs of the application were awarded to the 1st and 3rd to 5th respondents.

The bench

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

majority
majority
On appeal from
Environment and Land Court
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act (Cap. 9); the motion was brought under Rule 84 of the repealed Court of Appeal Rules, 2010 and treated as brought under Rule 86 of the Court of Appeal Rules, 2022

Relief refused

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Striking out of the Notice of Appeal dated 25th July 2024

The strike-out application was incompetent because it was filed on 23rd October 2024, outside the mandatory 30-day window from service prescribed by the proviso to Rule 86 of the Court of Appeal Rules, 2022.

p. 5

Striking out of the Record of Appeal dated 10th September 2024

The application was out of time under the proviso to Rule 86, and in any event the applicants lacked locus standi to complain of non-service on parties who were left out of the appeal.

p. 5

Complaint that non-service on Peter Nyaga Njoka and Hellen Wanjiru Nyaga denied the applicants a statutory right of cross-appeal

The applicants were not aggrieved by the impugned ruling and did not appeal against it; the suit against Peter Nyaga Njoka and Hellen Wanjiru Nyaga had been struck out, so their participation in the appeal would not assist the applicants, and only the party left out may complain of non-inclusion.

p. 5

Costs of the application and of the appeal borne by the 1st respondent

The application was dismissed, and costs were awarded against the applicants to the 1st and 3rd to 5th respondents.

p. 5

Costs

The application was dismissed with costs to the 1st, 3rd to 5th respondents; the applicants were not awarded the costs they had sought against the 1st respondent.

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.

In the circumstances, we find that the Notice of Motion dated 23rd October 2024 is incompetent for the reason of being filed outside the stipulated timelines pursuant to Rule 86. That is, having been filed on 23rd October 2024 instead of earlier than 25th August 2024. Consequently, the same is hereby dismissed with costs to the 1st, 3rd to 5th respondents.
p. 5Final orders - dismissal of an out-of-time strike-out application
Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days after the date of service of the notice of appeal or record of appeal, as the case may be.
p. 4Rule 86 proviso - the 30-day window for strike-out applications
The above proviso is couched in mandatory terms and we have no discretion to second guess what was intended by the framers of the Rules when they gave a time frame.
p. 4Mandatory nature of the strike-out time limit (quoting Joyce Bochere Nyamweya)
The proviso to that Rule clearly stipulates that an application to strike out a Notice of Appeal, such as the application before us, shall not be brought after the expiry of thirty (30) days from the date of service of the Notice of Appeal.
p. 5Time bar reaffirmed (quoting William Mwangi Nguruki)
it is our view that failure to cite the correct provision of the law does not of itself render the application incompetent.
p. 4Oxygen principle - wrong rule cited is not fatal
Simply said, they lacked locus standi on this front. Conversely, it is the party who has been left out in the appeal who ought to complain on the lack of inclusion and service of the appeal.
p. 5Locus standi to complain of non-service of an appeal
The applicants confirmed that they were served with the Notice of Appeal on 25th July 2024. The instant application should ideally then have been filed before 25th August 2024. Instead, it was filed on 23rd October 2024 outside the mandatory 30 days' period. On this score, the application itself is incompetent.
p. 5Computation of the 30-day period from service

Issues in the judgment

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minor

The costs order awards costs to a 3rd respondent who is never identified anywhere in the judgment; only the 1st (Bank of Africa Limited), 2nd (Kaab Investments Limited), 4th (Shami Motors Limited) and 5th (I.F.I. Paradise Properties Limited) respondents are named.

minor

Inconsistent date for the Record of Appeal: the motion seeks to strike out a Record of Appeal dated 10th September 2024, while the supporting affidavit deposes to service of a Record of Appeal dated 4th September 2024.

minor

An incomplete sentence in the recital of the applicants' submissions breaks off mid-thought without completion.

minor

The statute is misnamed as the 'Appellant Jurisdiction Act' when the motion is first described, but is correctly called the 'Appellate Jurisdiction Act' later in the judgment.

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, "Juja Coffee Exporters Ltd & 3 others v Bank of Africa Kenya Ltd & 4 others (Civil Appeal (Application) E185 of 2024) [2026] KECA 1580 (KLR)", Case Analysis (2026). Civil Appeal No. E185 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1580/eng@2026-07-31

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