Ali & 4 others v Sheikh Zayed Children Welfare and others & 3 others

application, 5 appellants are named as Ali Mohamed Ali, Juma Rshid Mwamba, Mohamed Bakari Awadh, Hamisi Mohamed Omari Page 2 of 7

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and Nana Hussein Salim while the respondents are named as Sheihk Zayed Children Welfare Centre & Others, National Land Commission, Likoni Police Station and County Government of Mombasa. In the Motion itself, the applicants are named as Ali Mohamed Ali & 4 Others while the respondents are named as Sheikh Zayed Children Welfare Wentre & Others, which case is replicated in the supporting affidavit. The deponent to the supporting affidavit is said to be the director of the applicant, which description cannot, for all intents and purposes fit the parties named as the applicants, who are individual persons. What salvages the situation, and which leads us to deduce who the applicant is, are the applicant’s submissions, as the body does indicate that the applicant to the application is the 1st respondent, namely Sheikh Zayed Children Welfare Centre & Others. 2. We emphasise the need to properly name, indicate and serialise parties in an application, and by extension, in all pleadings. The rationale cannot be overstated as it aids the Court in identifying the role and capacity in which a party comes to court, particularly where there are many applications in a matter. That makes it easy for the Court to point out which party filed which application and, ultimately, what the outcome was in respect of each application filed by the specific party. Additionally, proper naming and numbering of parties is a tool for identifying issues brought out by the respective party, and for the Court to understand the real issues of the dispute between the parties. Jumbled up headings as we have in this application are confusing and represent a chaotic record, rendering it extremely difficult for the court to dispense its obligation in an expeditious manner. Importantly, it Page 3 of 7

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is for the party coming to court to understand that it is their duty to make the work of the court easy in reading and understanding the pleadings. 3. For good order, and in view that costs are specifically sought as against the appellants (in the appeal), we shall leave the parties as they are named in the Index to the application save to add that the 1st respondent in the appeal is the applicant herein. 4. Having understood who the applicant is, what is before us is a Notice of Motion dated 12th March 2026 filed by Sheikh Zayed Children Welfare Centre & Others, named as the 1st respondent in the appeal, and which is brought under Rule 84 of the Court of Appeal Rules, 2022. The applicant seeks the following orders: 5. a) That the Notice of Appeal and Memorandum of Appeal dated 21st July 2023 be struck out; b) That cost of the application be paid by the appellants. The application is supported by the grounds on its face and the affidavit of Abubakar Hassan Dindia, the Director of the applicant deposed on even date. It was deposed that, on 21 st July 2023, the appellants filed Notice and Memorandum of Appeal dated 21st July 2023 against the Judgement of the Environment and Land Court (the ELC) Case No. 191 of 2021 (OS) (Matheka, J.) delivered on 20th June 2023; that the Notice and Memorandum of Appeal were filed out of time, and that no leave was sought by the appellants to file the same; that, pursuant to Rule 77(2) of the Court of Appeal Rules, 2022, the Notice of Appeal ought to be filed within 14 days upon delivery of a judgement and be served within 90 Page 4 of 7

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days of filing as per Rule 84(1). Page 5 of 7

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6. It was deposed that, as a result, the Notice of Appeal as filed is defective; that further, two years have lapsed and the Record of Appeal has not yet been filed; that the existence of the Notice of Appeal is a delay for execution of the judgment ensuing from the ELC and, hence, it is in the interest of justice that the application is allowed. 7. The application is not opposed. 8. We heard the application virtually on 15 th June 2026. None of the parties appeared despite service of a hearing notice. The applicant filed submissions dated 13 th May 2026 which we have duly considered. In brief, the applicant submitted that, contrary to clear provisions of this Court’s Rules, the appellants have neither filed the Notice of Appeal within time, nor the Record of Appeal to date. The applicant referred to the decisions of this Court in Mae Properties Limited vs. Kibe & Another (2017) KECA 238 (KLR); and Juma & 152 Others vs. Shah & 2 Others (2022) KECA 637 (KLR) where it was held that this Court’s Rules exist for a reason and for fair administration of justice; and that the Court cannot aid a party who fails to abide by them. 9. We have accordingly considered the application, the grounds upon which it is premised, the applicant’s submissions and the law. The only issue that falls for determination is whether the Notice of Appeal and the Memorandum of Appeal dated 21 st July 2023 should be struck out. 10. The decision which the appellants wish to appeal against was delivered on 20th June 2023. Rule 77(2) of this Court’s Rules, 2022 provides succinctly that: Page 6 of 7

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Each notice under sub rule (1) shall, subject to Rules 84 and 97, be lodged within fourteen days after the date of the decision against the decision for which appeal is lodged. 11. The operating word in Rule 77(2) is ‘shall’, which is couched in mandatory terms requiring that a Notice of Appeal is to be lodged within 14 days after the decision which a party wishes to appeal against. 12. This Court has on several occasions pronounced itself on the consequences of noncompliance with the timelines prescribed under the Court’s Rules. In that regard, we adopt the position taken by the Court in John Mutai Mwangi & 26 Others vs. Mwenja Ngure & 4 Others [2016] eKLR in which it was appreciated that the strict timelines are: “…meant to achieve the constitutional, statutory and rule-based objective of ensuring that the Court processes dispense justice in a timely, just, efficient and cost-effective manner.” 13. In MAE Properties Limited vs. Joseph Kibe & Another (supra), this Court expressed itself on the timelines prescribed under the Rules thus: “We have said on numerous occasions that the Rules of Court exist for the purpose of orderly administration of justice before this Court. The timelines for the doing of certain things and taking of certain steps are indispensable to the proper adjudication of the appeals that come before us. The Rules are expressed in clear and unambiguous terms and they command obedience … Failure to comply with the timelines set invites sure consequences.” Page 7 of 7

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14. The rationale for strict adherence to rules of practice and procedure was also underpinned in Martin Kabaya vs. David Mungania Kiambi (2015) KECA 526 (KLR) in which this Court observed as follows: ‘‘The Constitution, the Appellate Jurisdiction Act and the Court of Appeal Rules, all envision that justice shall be rendered in an efficient and expeditious manner. Thus, a notice of appeal, a rather simple and straight forward document, a form of which is provided in the Schedule to the Rules of Court, is required to be filed within fourteen days of the decision intended to be appealed against. Where an intended appellant fails to comply with that timeline, his recourse is to move a single Judge of this Court under Rule 4 for enlargement of time.’’ 15. Therefore, it follows that if a party finds itself handicapped for want of filing the Notice of Appeal on time, the simple yet noble thing to do is to seek an extension of time, well before filing. Otherwise, failure to adhere to the strict timelines set out in the Court’s Rules exposes the Court to chaos, making it impossible to adjudicate disputes in an expeditious manner. As such, the Rules must be followed to the letter since, as the adage goes, ‘equity does not aid the indolent’. 16. The impugned judgement having been delivered on 20 th June 2023, 14 days as encapsulated under Rule 77(2) lapsed on 4 th July 2023. The Notice of Appeal filed on 21 st July 2023 was, therefore, without a doubt, out of time, leave of the Court not having been sought to extend the time within which to file it. Needless to say, a properly filed Notice of Appeal is what bestows upon this Court its jurisdiction, and without a valid one, this Page 8 of 7

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Court is divested of jurisdiction and cannot make one more step. What this also means is that, without a valid Notice of Appeal, the Memorandum of Appeal has no feet on which to stand. 17. In the premises, we find that the application dated 12 th March 2026 is merited and is hereby allowed as prayed. The Notice of Appeal dated 21st July 2023 is hereby struck out, and the same fate befalls the Memorandum of Appeal evenly dated. The appellants shall bear the costs of this application to be paid to the applicant only. Dated and delivered at Mombasa this 25th day of September, 2026. G. W. NGENYE-MACHARIA …………………............….. JUDGE OF APPEAL S. O. OKONG’O …………………............….. JUDGE OF APPEAL (DR). J.O. OKELLO …………………............….. JUDGE OF APPEAL I certify that this is the true copy of the original signed DEPUTY REGISTRAR Page 9 of 7

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