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Court of AppealPartially AllowedCivil Appeal (Application) E182 of 2024

Mombasa Cement Ltd v Speaker of the National Assembly & 4 others

Court of Appeal
25 September 2026
AMA. K. MurgorKLK. I. LaibutaGNG. W. Ngenye-Macharia
2,428 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out the Speaker's appeal record for being filed 182 days late without permission, ending that appeal as filed.

What this practically means

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Executive summary

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Mombasa Cement Limited applied under Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 84(1) and 86(b) of the Court of Appeal Rules, 2022 to strike out the Speaker of the National Assembly's Record of Appeal, filed 17th September 2024 and served 18th September 2024, against a ruling of the Environment and Land Court (Kibunja, J.) of 17th January 2024 dismissing a reference against a taxing master's decision in Mombasa ELC Petition No. 17 of 2018. The Applicant contended the Record was filed some 182 days out of time without leave, and that no valid Certificate of Delay covered the impugned ruling. The Speaker responded that typed proceedings were requested on 19th January 2024 and collected on 19th July 2024, so that, excluding the 182 days taken to prepare them, the Record was filed within the 60-day window; the omission of the Certificate of Delay was attributed to the Registry, and a supplementary Record including it was the subject of a pending application. The Court first confirmed its own jurisdiction to entertain the motion, holding it was brought within the 30-day proviso to Rule 86. It then found the Record was filed well beyond 60 days and that the Speaker never sought leave to enlarge time, an omission rendering the Record liable to be struck out. The motion was allowed with costs to the Applicant. This ruling binds the subordinate courts and parties in the pending appeal, effectively terminating that appeal as constituted unless properly re-instated.

Questions the Court framed

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

  1. 1.Whether the Applicant has established sufficient grounds to warrant the striking out of the Notice and Record of Appeal
  2. 2.Whether the application to strike out was brought within the 30-day period prescribed by the proviso to Rule 86 of the Court of Appeal Rules

Key legal issues

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01

Timeliness of the striking-out application under Rule 86

Holding

The application, filed 27th September 2024 within 30 days of service of the Record on 18th September 2024, was competent.

Reasoning

The court computed the interval between service of the Record of Appeal (18th September 2024) and the motion (27th September 2024) and found it within the 30-day proviso to Rule 86, so the application could be entertained.

p. 5
02

Whether the Record of Appeal was filed out of time without leave

Holding

The Record was filed 182 days beyond the prescribed period and no leave to enlarge time was sought, rendering it liable to be struck out under Rule 86.

Reasoning

Although a request for typed proceedings was lodged on 19th January 2024, no Certificate of Delay was filed with the Record, and the 1st Respondent never applied for enlargement of time. The infraction fell within Rule 86(b) as an essential step not taken within the prescribed time.

p. 5

Legal principles established

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  • An application to strike out a notice of appeal or record of appeal must be brought within 30 days of service of the notice or record; failure renders it fatally defective
  • The proviso to Rule 84(1) excluding time for preparation of typed proceedings is available only where the application for the copy was in writing and served on the respondent within 30 days
  • Striking out for procedural default is exercised only where the failure to follow the rules was flagrant, deliberate, flippant or reckless

Court orders

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  1. 1.The Notice of Motion dated 27th September 2024 is allowed
  2. 2.The Record of Appeal filed on 17th September 2024 and served on 18th September 2024 is struck out
  3. 3.Costs of the application to the Applicant

The bench

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

AM
majority

Wrote the judgment

KL
majority

Wrote the judgment

GN
majority

Wrote the judgment

On appeal from
Environment and Land Court at Mombasa
Mombasa ELC Petition No. 17 of 2018
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 84(1) and 86(b) of the Court of Appeal Rules, 2022

Relief refused

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1st Respondent's implicit plea to sustain the Record of Appeal despite late filing

The 1st Respondent never sought leave of the Court to enlarge time for filing the Record out of time

p. 5

Costs

Costs of the application awarded to the Applicant (Mombasa Cement Limited)

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 premises, the Notice of Motion dated 27th September 2021 is merited and is hereby allowed, with the result that the Record of Appeal filed on 17th September 2024 and served on 18th September 2024 is hereby struck out with costs to the Applicant.
p. 5Final orders - striking out of Record of Appeal
This grave omission has caused the Record of Appeal to fall victim to the strictures of Rule 86 of this Courts' Rules, thereby rendering it liable to be struck out.
p. 5Consequence of failure to seek enlargement of time
The Rules are expressed in clear and unambiguous terms and they command obedience … Failure to comply with the timelines set invites sure consequences.
p. 4Strict compliance with appellate timelines (quoting Mae Properties)
A computation of the intervening period reveals that the Applicant's application was brought within the 30 days period specified by Rule 86, with the effect that the application, as lodged, is competent.
p. 5Timeliness of striking-out application

Issues in the judgment

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minor

Final order misdates the motion as '27th September 2021' instead of 2024

minor

Conflicting dates for the Certificate of Delay: 10th November 2020 (applicant) versus issued 2nd December 2024 (respondent)

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, "Mombasa Cement Ltd v Speaker of the National Assembly & 4 others", Case Analysis (2026). Civil Appeal (Application) E182 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1780/eng@2026-09-25

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