Meptax Consoltium Limited v County Government of Kisumu & another (Civil Appeal (Application) E026 of 2025) [2025] KECA 2212 (KLR) (28 November 2025) (Ruling)
Neutral citation:
[2025] KECA 2212 (KLR)
Republic of Kenya
Civil Appeal (Application) E026 of 2025
MS Asike-Makhandia, HA Omondi & AO Muchelule, JJA
November 28, 2025
Between
Meptax Consoltium Limited
Applicant
and
The County Government of Kisumu
1st Respondent
The Board of Kisumu City
2nd Respondent
(Being an application to strike out the record of appeal from the judgment of the High Court of Kenya at Kisumu (Kamau, J.) dated 22nd February 2023 in HCCC No. 18 of 2019
Civil Case 18 of 2019
)
Ruling
1.Aggrieved by the judgment delivered on 22nd February 2023, the respondents, the County Government of Kisumu and the Board of Kisumu City, lodged a notice of appeal on 8th March 2023 and served it on the applicant, Meptax Consoltium Ltd, on 16th March 2023. Under Rule 84(1) of the Court of Appeal Rules, 2022 “the rules” the record of appeal was required to be lodged within 60 days thereafter.
2.The applicant’s case is that on 7th February 2025 and on 11th February 2025, it was served with the record of appeal through email. The record of appeal was dated 3rd February, 2025, and lodged on 6th February 2025. The filing was way beyond the 60 days. This is why by this notice of motion dated 13th February 2025, the applicant seeks that the record of appeal be struck out as it was filed out of time and without leave. The application is under Rules 84, 85 and 86 of the Rules. Rule 86 provides as follows:
3.In response, the respondents filed a replying affidavit to state that the delay in filing the record of appeal was due to the failure to obtain a certified copy of the proceedings and judgment. It is evident that the applicant was not served with any letter to the Registrar bespeaking proceedings and judgment, and none was exhibited by the respondents. The respondents cannot therefore benefit from the proviso to Rule 84(1) of the Rules. We are satisfied that the application to strike out was brought within 30 days of the service of the notice of appeal.
4.We were addressed by learned counsel Mr. Bagada for the applicant and learned counsel Mr. Munuango for the respondents. The facts of the application are as outlined above are not contested.
5.Under Rule 85 of the Rules, a party who had lodged a notice of appeal but fails to institute the appeal within the appointed time shall be deemed to have withdrawn the notice of appeal. The Court, on its own motion or on application, will make the order that the notice of appeal is deemed to have been withdrawn (see Mae Properties Limited -vs- Joseph Kibe & Another, Civil Appeal NAI No. 201 of 2016). However, under Rule 86, the affected party may ask that the appeal lodged out of time and without leave be struck out. Such an appeal is just a document placed on record without any value at all (see Bookpoint Limited -vs- Guardian Bank Limited & Another, Supreme Court application No. 4 (E006) of 2021).
6.Under Rule 86, we allow the application, and strike out the record of appeal dated 3rd February 2025 and filed on 6th February 2025 with costs to the applicant.
DATED AND DELIVERED AT KISUMU THIS 28TH DAY OF NOVEMBER 2025 ASIKE - MAKHANDIAJUDGE OF APPEAL........................................H. A. OMONDI........................................JUDGE OF APPEAL A.O. MUCHELULE........................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR