Gakere v Njuguna

4. The appellant opposed the application vide a replying adavit sworn on 8th April 2025, where he acknowledges that the memorandum of appeal was served on the respondent on 12th March 2025. However, he contends that the issues raised in the respondent's application are mere procedural technicalities that are not fatal to the appeal; the appeal raises weighty matters of law and should not be dismissed based on a technicality; the appeal ought to proceed to hearing and that the application is frivolous and made in bad taste. 5. In support of the application, learned counsel for the applicant led submissions and a list of authorities, both dated 28th April 2025. Counsel reiterating the grounds of the application and the averments in the adavit in support, and we need not rehash them. In urging the Court to strike out the notice of appeal and the record of appeal, counsel relies on Barng’etuny & 2 Others vs Ngetich (Civil Appeal (Application) E079 of 2023) [2024] KECA 597 (KLR), where this Court struck out an appeal for late service of the notice of appeal and record of appeal. 6. Counsel further cites Mwawasi vs Shako (Civil Application E053 of 2023) [2024] KECA 632 (KLR), where this Court held that failure to take remedial steps could not cure the omission to comply with timelines and that while the reasons advanced may have been considered in an application for extension of time under rule 4 of the Rules, they were of no assistance to a respondent in an application for striking out. 7. Learned counsel for the respondent, in objecting to the application, led submissions dated 15th April 2025 and contends that the application is misplaced, and urges the Court to consider substantive justice over procedural technicalities. Counsel further urged that the delay in serving the notice of appeal is attributable to a mistake by counsel and the court. In support of this proposition, counsel relies on Godfrey Kinuu Maingi & 4 Others vs Nthimbiri Farmers Co-op Society Limited & Another [2008] eKLR and Kenya Bankers Co-operative & Another vs George Arunga Sino [2010] EKLR. 8. Counsel maintains that he has been honest about the oversight and specically submits that while the notice was led promptly, the Deputy Registrar did not sign it in time for purposes of service within the required seven-day window. 9. Counsel further contends that the law does not prescribe a specic limit for delays as long as they are satisfactorily explained and relies on the case of Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet [2018] eKLR. 10. Furthermore, counsel asserts that the appellant was already aware of and in possession of the appeal documents before ling the application, as evidenced by receipts attached to the replying adavit. He emphasises the appellant’s commitment to prosecuting the appeal and argues that striking out the appeal would be unconscionable and unjustied, as this would cause the appellant to lose the opportunity for a merit-based determination. 11. Counsel further invokes Article 159(2)(d) of the Constitution and the Appellate Jurisdiction Act, to urge that procedural rules should serve as handmaidens of justice rather than rigid barriers and that the Court therefore ought to dismiss the application with costs, asserting that no prejudice would befall the applicant if the appeal proceeds on merit. 12. Having considered the pleadings, adavits, submissions and case law cited, we nd that the sole issue for determination is whether the appeal should be struck out due to non-service of the notice of appeal and the late service of the record of appeal in violation of the time prescribed under the rules. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1700/eng@2026-09-25 2

page 2 of 4

13. Rule 79(1) of the Rules partly provides that: An intended appellant shall, before or within seven days after lodging notice of appeal under rule 77, serve copies of the notice on all persons directly aected by the appeal: Rule 92(1) of the Rules, 2022 states that: An appellant shall, before or within seven days after lodging the record of appeal, serve a copy of the record of appeal on each respondent. 14. In the present case, the notice of appeal was lodged on 21st December 2023. The applicant’s position is that he was never served with the same, this was not contested and no proof of service of the notice of appeal was placed before us. It is undisputed that the record of appeal was led on 12th February 2024 and ought to have been served by 19th March 2024. However, the same was served one year later, on 12th March 2025. 15. The requirement of timely service is not a cosmetic procedural step. It is an essential step in the appellate process. The notice of appeal is to be served seven (7) days upon lodging of the same. It is an indicator that informs the respondent that an appeal has been instituted and enables him to take steps towards defending the same. We can borrow from the determination of the Supreme Court in Raila Odinga vs Independent Electoral and Boundaries Commission & Others, Petition No 5 of 2013, where the Court was emphatic that rules and timelines are to be taken with “seriousness and the appropriate solemnity” as they are established with special and unique considerations. 16. The appellant has urged that the delay was inadvertent and partly attributable to the registry. Even if the position is correct, the appellant should have moved the Court to correct the anomaly. As for the record of appeal, having carefully examined the replying adavit and submissions, we nd that no plausible explanation was tendered to justify the one-year delay in serving the record of appeal. 17. The obligation to serve the record of appeal is placed squarely upon the appellant, and it is incumbent upon such a party to ensure compliance with the Rules or, for good reason, promptly seek an extension of time, which was not done in this instance. In Mae Properties Limited vs Kibe & Another (Civil Appeal 201 of 2016) [2017] KECA 238 (KLR), this Court held that failure to serve a notice of appeal within time is not a mere technicality but goes to the root of the appeal and renders the notice incompetent unless extension of time is sought and granted. This Court, in emphasising the need to take necessary steps timeously, succinctly stated: “ The need for judicial proceedings to be concluded in a timely fashion is too plain for argument. It is a desideratum of a rational society. A justice that is too long in coming, encumbered by sloth or inattention on the part of those who seek it, is a pain and a bother. An expensive one at that. A justice that comes too late in the day is a tepid drop on perched lips that quenches no thirst. A justice delayed is a justice denied. Litigants, especially those summoned by plaints, petitions, applications or appeals are vexed when those who summoned them hence go to sleep yet the proceedings and processes they engendered remain alive but comatose, a burden to the mind and to the pocket. And they form part of the dead weight the Judiciary bears as backlog.” 18. Despite the acknowledgement of non-service of the notice of appeal and long delay in serving the record of appeal, the appellant did not take steps to regularise the default by seeking an extension of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1700/eng@2026-09-25 3

page 3 of 4

time. Our rules are very clear on steps to be undertaken by a litigant who has substantial reason to seek an extension of time. 19. The respondent’s reliance on Article 159(2)(d) of the Constitution cannot salvage an appeal that is incompetent for want of compliance with mandatory provisions of the Rules. The jurisprudence of this Court is settled that Article 159 is not intended to overthrow procedural requirements but to prevent undue reliance on technicalities, where a party has substantially complied or where justice demands. It cannot, however, be used to validate a clear breach of the Rules that go to the competence of the appeal. It has been stated time without number that rules of procedure are handmaidens of justice. They are essential in ensuring orderly administration of justice, and parties must comply with them; if there is good and sucient reason for the delay, the Court ought to be moved for an extension of time. 20. Based on our views above, we hereby allow the application. The notice of appeal and the record of appeal are struck out for non- service and late service, respectively. 21. Costs to the applicant (respondent). DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. K. M’INOTI ......................................... JUDGE OF APPEAL S. ole KANTAI .......................................... JUDGE OF APPEAL ALI-ARONI .......................................... 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/2026/1700/eng@2026-09-25 4

page 4 of 4