By a Notice of Motion dated 7TH March 2025, the Appellant seeks that this Court review and set aside its judgment herein. The application is expressed to be under the provisions of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, and is premised on the grounds set out on the face of it and in the supporting affidavit filed contemporaneously therewith.
The Appellant contends that the judgment dismissed the appeal on a single ground, namely that it was filed outside the statutory period without leave of the Court. Prior to filing the appeal, they had sought and been granted leave to file an appeal out of time in Malindi Misc. Application No. E003 of 2024. However, inadvertently, the order was not included in the record of appeal by their Counsel. Counsel’s mistake ought not be visited on them.
The Respondent opposes the application, contending that it is misconceived, fatally defective, and an abuse of the court process. The omission cannot be cured by an application for review, particularly given that the Applicant was fully aware of the need to include the said ruling and orders in the record of appeal. Additionally, the Appellant cannot be permitted to seek to reopen the proceedings as a result of matters arising from their own negligence.
The Appellant’s application does not satisfy the requisite conditions for the grant of review orders. Furthermore, the Appellant has not explained sufficiently why the ruling and or order was not included in the record of appeal.
Determination
I have carefully considered the Appellant’s application, the grounds upon which it is premised, the affidavit in support, the Respondent’s replying affidavit, and the respective submissions of the parties’ Counsel. A single issue arises for determination, namely, whether the Appellant’s application is merited.
There is no dispute that leave of the Court had been duly granted to file the appeal out of time. The omission to incorporate the order granting leave into the record of appeal does not, in the circumstances of the case, appear to have been deliberate. I am persuaded that the omission arose from inadvertence or an excusable mistake on the part of counsel in preparing the record.
It is well settled that mistakes of Counsel, though not to be encouraged, should not invariably be visited upon a litigant where the interests of justice can still be safeguarded without occasioning prejudice to the opposite party. Courts are enjoined to administer substantive justice and avoid undue reliance on procedural lapses that do not go to the root of the dispute.
The existence of the order granting leave is not contested. Indeed, the omission complained of relates merely to the failure to include the order in the compiled record, rather than to the absence of the leave itself. In the circumstances, sustaining a judgment founded upon such omission would elevate form over substance and defeat the broader interests of justice.
I am therefore satisfied that a sufficient reason has been shown to warrant the exercise of this Court’s discretionary jurisdiction in favour of the Applicant. Consequently, the threshold for review has been met, and there is a proper basis for the Court to review and set aside the judgment, thereby permitting the matter to be determined on the merits.
By reason of the foregoing, I hereby set aside the Judgment herein. The appeal shall be considered on the merits. The Appellant is granted leave to file a supplementary record of appeal to incorporate the ruling in Malindi Misc. Application No. E003 of 2024.
Each party shall bear its own costs of the application.
Read, signed, and delivered this 18th Day of May 2026.
The Appellant contends that the judgment dismissed the appeal on a single ground, namely that it was filed outside the statutory period without leave of the Court. Prior to filing the appeal, they had sought and been granted leave to file an appeal out of time in Malindi Misc. Application No. E003 of 2024. However, inadvertently, the order was not included in the record of appeal by their Counsel. Counsel’s mistake ought not be visited on them.
The Respondent opposes the application, contending that it is misconceived, fatally defective, and an abuse of the court process. The omission cannot be cured by an application for review, particularly given that the Applicant was fully aware of the need to include the said ruling and orders in the record of appeal. Additionally, the Appellant cannot be permitted to seek to reopen the proceedings as a result of matters arising from their own negligence.
The Appellant’s application does not satisfy the requisite conditions for the grant of review orders. Furthermore, the Appellant has not explained sufficiently why the ruling and or order was not included in the record of appeal.
Determination
I have carefully considered the Appellant’s application, the grounds upon which it is premised, the affidavit in support, the Respondent’s replying affidavit, and the respective submissions of the parties’ Counsel. A single issue arises for determination, namely, whether the Appellant’s application is merited.
There is no dispute that leave of the Court had been duly granted to file the appeal out of time. The omission to incorporate the order granting leave into the record of appeal does not, in the circumstances of the case, appear to have been deliberate. I am persuaded that the omission arose from inadvertence or an excusable mistake on the part of counsel in preparing the record.
It is well settled that mistakes of Counsel, though not to be encouraged, should not invariably be visited upon a litigant where the interests of justice can still be safeguarded without occasioning prejudice to the opposite party. Courts are enjoined to administer substantive justice and avoid undue reliance on procedural lapses that do not go to the root of the dispute.
The existence of the order granting leave is not contested. Indeed, the omission complained of relates merely to the failure to include the order in the compiled record, rather than to the absence of the leave itself. In the circumstances, sustaining a judgment founded upon such omission would elevate form over substance and defeat the broader interests of justice.
I am therefore satisfied that a sufficient reason has been shown to warrant the exercise of this Court’s discretionary jurisdiction in favour of the Applicant. Consequently, the threshold for review has been met, and there is a proper basis for the Court to review and set aside the judgment, thereby permitting the matter to be determined on the merits.
By reason of the foregoing, I hereby set aside the Judgment herein. The appeal shall be considered on the merits. The Appellant is granted leave to file a supplementary record of appeal to incorporate the ruling in Malindi Misc. Application No. E003 of 2024.
Each party shall bear its own costs of the application.
Read, signed, and delivered this 18th Day of May 2026.