Magnate Ventures Ltd v Majestic Security Services Ltd & 4 others

Loresho, Nairobi and that the sale of the suit property to the applicant by Rahab Karei Mukiama and Titus Kurauka Mukiama (the 2nd and 3rd respondent, respectively) was unlawful and fraudulent. The 1st respondent further prayed for cancellation of the applicant’s title and registration of the suit property in its own name; an order for eviction of the applicant and the 2nd and 3rd respondents from the suit property; general damages; and costs. 3. In its defence and counterclaim, the applicant pleaded that it was the lawful owner of the suit property, having purchase the same from the 1st respondent before the latter’s directors were unlawfully changed so as to impeach the transaction. The applicant prayed for an order for removal of a caveat that the 1st respondent had placed on the title to the suit property. 4. The suit was heard by Angote, J., who, by a judgment dated 8th February 2024, dismissed the 1st respondent’s suit and allowed the applicant’s counter-claim. The 1st respondent was aggrieved and lodged a notice of appeal on 28th February 2024. The notice of appeal was served upon the applicant on 6th March 2024. 5. On 13th December 2024 the 1st respondent applied in this Court for an order of injunction to stop the applicant from dealing with or transferring the suit property pending the hearing and determination of its appeal. The 1st respondent also applied for an order directing the Chief Land Registrar to issue an inhibition on the suit property to stop any dealing therewith pending the hearing and determination of the appeal. 6. On 29th January 2025, the Court issued the following orders: i. The 1st respondent shall remain in possession of the suit property, but is hereby restrained from developing or disposing of the suit property pending the hearing and disposal of the intended appeal; ii. The applicant shall file and serve the intended appeal within 45 days (from the date) hereof failing which the restraining orders issued in order (i) above shall automatically lapse; and iii. Costs of the Motion shall be in the intended appeal.” 7. The 1st respondent filed the record of appeal on 25th March 2025 and served the same upon the applicant on 31st March 2025. 8. On 7th April 2025, the applicant filed the motion now before the Court, seeking the three reliefs we have already adverted to. In support of the application, Mr. Havi, learned counsel for the applicant, relied on the supporting affidavit sworn by Stanley Kinyanjui, a director of the applicant, on 7th April 2025 and written submissions dated 18th April 2025. 9. The substance of the applicant’s succinct submissions is that the 1st respondent filed the record of appeal on 25th March 2025, which was contrary to the order of the Court dated 29th January 2025 directing the 1st respondent to file the record of appeal within 45 days. According to the applicant’s computation of time, the record of appeal was filed 10 days out of time, without leave of the Court. It was submitted that in terms of the self-executing order of the Court, the order of injunction automatically lapsed once the 1st respondent failed to file the record of appeal within the prescribed 45 days. 10. It was also the applicant’s submission that the 1st respondent’s notice of appeal should be deemed to have been withdrawn because the 1st respondent did not serve on the applicant a copy of the letter bespeaking proceedings, if any, as and within the time prescribed by the proviso to rule 84 of the Court of Appeal Rules. Further, that having failed to comply with the proviso, the 1st respondent was required https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2042/eng@2025-11-28 2

page 2 of 5

to file the record of appeal within 60 days from the date of the lodgement of the notice of appeal, which is 27th April 2024. 11. The applicant also impeached the competence of the record of appeal on the basis that, though filed out of time, it did not contain a certificate of delay, which would have explained the failure to file the appeal within the 60 days prescribed by the Rules. 12. Lastly, it was the applicant’s contention that having applied for review of the judgment of the ELC, the 1st respondent could not appeal against the same judgment. In support the application, the applicant relied on the following authorities, namely: John Mutai Mwangi & 26 Others v Mwenja Ngure & 4 Others [2016] eKLR; Mae Properties Ltd v Jospeh Kibe & Another [2017] eKLR; Muzaffer Musafee Essagee & another v Ann Njeri Mwangi [2021] eKLR; and Tharaka Nithi County Government & Another v David Kithara Gaichu & 129 Others [2022] eKLR. 13. The 1st respondent, represented by Mr. Kandie, learned counsel, opposed the application vide a replying affidavit sworn by its director, Esther Jeanet Ngenyi, on 30th April 2025 and written submissions and authorities dated 13th June 2025. As far is relevant to the application before the Court, the 1st respondent contended that its notice of appeal is competent and that it applied for certified copies of proceedings and judgment in writing on 12th February 2024 and followed up the proceedings and certificate of delay with the registrar vide letters dated 22nd May 2024, 4th November 2024 and 22nd November 2024. The court issued the certificate of delay late, on 22nd April 2025 after the 1st respondent had been pursuing the issue since February 2024. 14. As regards the failure to file the appeal within the 45 days as ordered by the Court, the 1st respondent explained that the parties were not informed when the order of the Court was made and that it only received the order on 22nd February 2025. 15. The 1st respondent submitted that the application to strike out the notice of appeal was res judicata because the issue had been raised in a previous application for interlocutory relief (CA No. E. 692 of 2024). It was also contended that in directing the 1st respondent to file the record of appeal within 45 days, the Court must be deemed to have considered and upheld the validity of the notice of appeal, and therefore, the applicant cannot raise the issue again. 16. As regards the prayer for rescission of the orders of the Court issued on 29th January 2025, the 1st respondent submitted that it was a disguised application for review of those orders and that there was no basis for exercising the review jurisdiction of the Court. 17. Lastly, the 1st respondent urged the Court not to pay regard to procedural technicalities and not to visit mistake of counsel upon it. 18. The other respondents did not respond to the application. At the hearing, Mr Kamau, learned counsel for the 4th respondent appeared and informed the Court that he was supporting the application to strike out the record of appeal. 19. We have carefully considered this application and the submissions by learned counsel. As earlier pointed out, the impugned judgment was rendered on 8th February 2024 and the 1st respondent lodged the notice of appeal 28th February 2024. Clearly, the notice of appeal was lodged out of the 14 days from the date of the impugned judgment prescribed by rule 77(2) of the Court of Appeal Rules. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2042/eng@2025-11-28 3

page 3 of 5

20. To sustain an application to strike out the notice of appeal, the applicant was required by rule 86 to present the application within 30 days from the date of service of the notice of appeal. The proviso to that rule provided as follows in mandatory terms: “ 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 car may be.” 21. The 1st respondent served the notice of appeal on the applicant on 6th March 2024 and the applicant filed the application to strike out on 7th April 2025, which was far beyond the prescribed 30 days. Accordingly, the applicant has no basis for challenging the competence of the notice of appeal. 22. It’s a different matter as regards the record of appeal, which we shall revert to shortly. 23. We do not think there is substance in the applicant’s contention that having applied for review, the 1st respondent could not prefer an appeal, for the simple reason that the application for review was withdrawn before it was heard. Nor is there any substance in the 1st respondent’s contention that when this Court directed it to file the record of appeal within 45 days, it must be deemed to have found the notice of appeal valid. First, the Court did not address itself to the issue of competence of the notice of appeal, simply because what was before it was an application for an order of injunction, not an application to strike out the notice of appeal. This Court has held time without number that a party who alleges that a notice of appeal or a record of appeal is incompetent must resort to the provisions of rule 86 of the Court’s Rules. (See National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] KECA 333 (KLR). 24. Turning back to the record of appeal, the same was filed on 25th March 2025 and served upon the applicant on 31st March 2025. As regards the appeal, the applicant was within the 30 days prescribed by rule 86 of the Court of Appeal Rules when it made the application to strike out the appeal. 25. The applicant challenges the competence of the record of appeal on various grounds, but as far as we are concerned, the most valid ground and which we need to focus on is that the record of appeal was filed outside the 45 days directed by Court. The order was made on 29th January 2025 and the 1st respondent filed the record of appeal on 25th March, 2025, which was after a period of 55 days. Clearly the record of appeal was filed out of time, contrary to the express orders of the Court. 26. The 1st respondent submits that it did not get to know of the orders of the Court until 22nd February 2025; that the Court should not pay under regard to technicalities; and that mistake of its counsel should not be visited upon it. Those are reasons that ought to be presented in an application for extension of time, not in an application for striking out a record of appeal. Once the 1st respondent found that it could not comply with the 45 days prescribed by the Court for whatever reason, the applicant was obliged to apply for extension of time, which it did not do. Clearly, therefore, the record of appeal is incompetent because it was filed out of time without leave of the Court. 27. In Ramji Devi Vekaria v Joseph Oyula [2011] KECA 327 (KLR]; Patrick Kithinji v Victor Mugira Marete [2015] KECA 872 (KLR); Daniel Nkirimpa Monirei v Sayialel Ole Koilel & 4 Others [2016] KECA 148 (KLR), this Court held that failure to file an appeal within the prescribed time is not a mere technicality amenable to cure under the overriding objective. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2042/eng@2025-11-28 4

page 4 of 5

28. As regards the applicant’s prayer for rescission of the orders of this Court dated 29th January 2025, we do not think we need to add anything, for two reasons. First, the order was self-executing, in the following terms: “ The applicant shall file and serve the intended appeal within 45 days (from the date) hereof failing which the restraining orders issued in order (i) above shall automatically lapse” (Emphasis added). 29. Secondly, having found that the record of appeal is incompetent, because it was filed out of time, there is no appeal in existence which can continue to underpin the orders of the Court dated 29th January 2025. 30. Ultimately, the application dated 7th April 2025 succeeds to the extent that the record of appeal filed on 25th March 2025 is hereby struck out with costs to the applicant. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 28TH DAY OF NOVEMBER 2025. W. KARANJA ................................... JUDGE OF APPEAL K. M’INOTI ................................... JUDGE OF APPEAL JOEL NGUGI ................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2042/eng@2025-11-28 5

page 5 of 5