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Court of AppealDismissedCivil Application No E266 of 2021

Richard Kyallo Makau v Oliver Ndeti Kioko, Justus Muia Kioko & Eastern Properties Limited

Court of Appeal
25 September 2026
1,878 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Korir, Ndolo & Hassan, JJ.A.) on the applicant's notice of motion dated 29th July 2021, brought under section 3A & 3B of the Appellate Jurisdiction Act and rule 86 of the Court of Appeal Rules, seeking to strike out the notices of appeal and record of appeal in Civil Appeal No E355 of 2021. The appeal targeted the judgment of Angote, J. of the Environment and Land Court at Machakos delivered on 12th July 2019 in ELC Case No 340 of 2011, which declared that the 1st and 2nd respondents held 35 acres comprising parcel Mavoko Town Block/3/2241 in trust for the applicant and directed transfer of the land to him. The applicant argued the appeals were filed out of time without leave, that the certificates of delay misrepresented facts, and that the respondents were guilty of laches while he had already executed the decree. The 3rd respondent opposed, contending its notice of appeal was lodged and served in time, that delay in filing the appeal was attributable to the registry, and - decisively - that the striking-out application itself was filed outside the 30-day window prescribed by the proviso to rule 84 (now rule 86), running from 26th July 2019 to 26th August 2019. The court agreed, holding the proviso mandatory and strictly observed per its precedents in Irungu, HFCK Limited v Kinyanjui and JOP v AKM. The application was found incompetent, dismissed with costs to the 3rd respondent. The underlying appeals were not struck out.

Questions the Court framed

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

  1. 1.Whether the application to strike out the notices of appeal and record of appeal was filed within the 30-day window prescribed by the proviso to rule 84 (now rule 86) of the Court of Appeal Rules
  2. 2.Whether the respondents' appeals were filed out of time and without leave
  3. 3.Whether the application is competent before the Court

Key legal issues

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01

Timeliness of the striking-out application

Holding

The application filed on 29th July 2021 was out of time, the 30-day period having run from 26th July 2019 to 26th August 2019 following service of the notice of appeal lodged on 19th July 2019.

Reasoning

The court applied the proviso to rule 84 of the repealed 2010 Rules (retained in rule 86 of the 2022 Rules), which limits striking-out applications to 30 days from service of the notice of appeal or record of appeal. The applicant did not deny the computation of the service period, and the court held the timeline mandatory, following its own precedents including Irungu vs Nairobi City Water & Sewerage Company Limited.

p. 9
02

Competence of the application

Holding

Having been filed outside the prescribed 30-day window, the application was incompetent and could not be saved.

Reasoning

The court found that strict observance of the proviso's timeline is required and that an out-of-time striking-out application is incompetent and cannot be salvaged, notwithstanding the merits of the underlying complaint about delay in filing the appeals.

p. 12

Legal principles established

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  • An application to strike out a notice of appeal or an appeal under rule 86 must be brought within 30 days of service of the notice of appeal or record of appeal, and this timeline is mandatory and strictly observed.
  • Procedural timelines in the Court of Appeal Rules are neither ornamental nor optional, and the jurisdiction to strike out, though discretionary, must be invoked within the prescribed timeline.

Court orders

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  1. 1.The application to strike out the notice of appeal is dismissed
  2. 2.Costs of the application awarded to the 3rd respondent

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court at Machakos
ELC Case No 340 of 2011
Jurisdiction invoked
Section 3A & 3B of the Appellate Jurisdiction Act and rule 86 of the Court of Appeal Rules

Relief refused

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Striking out the notices of appeal and record of appeal in Civil Appeal No E355 of 2021

The application itself was filed outside the mandatory 30-day window from service of the notice of appeal, rendering it incompetent

p. 12

Costs

It is dismissed with costs to the 3rd 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.

The proviso, which is couched in mandatory terms, provides that an application for striking out a notice of appeal or an appeal itself must be brought, within 30 days of service of the notice of appeal or record of appeal as the case may be.
p. 11Mandatory 30-day limitation for striking-out applications
This Court has consistently affirmed that the timeline given in the proviso must be strictly observed.
p. 11Strict observance of procedural timelines
In the result, our finding is that the application to strike out the notice of appeal was filed outside the 30-day window provided under the Rules of the Court. The application is therefore incompetent and cannot be saved. It is dismissed with costs to the 3rd respondent.
p. 12Final orders and disposition

Issues in the judgment

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minor

Conflicting dates for the 3rd respondent's request for typed proceedings

minor

Judgment dated 25th September 2026 but recites hearing on 17th March 2026 and a replying affidavit sworn 17th October 2024; application dated 29th July 2021

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, "Richard Kyallo Makau v Oliver Ndeti Kioko, Justus Muia Kioko & Eastern Properties Limited", Case Analysis (2026). Civil Application No E266 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1823/eng@2026-09-25

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