1. Before the Court is the Notice of Motion dated 08th December 2025 by the Ebisiba Nyaboke Omwoyo, the Respondent/Applicant seeking orders that the Memorandum of Appeal dated 24th November 2025 and filed on 26th November 2025 be struck out for having been filed outside the statutory period and without leave of the Court. The application is supported by the the Respondent/Applicant’s Affidavit of sworn on even date together with the annexures marked “ENO 1” and “ENO 2”.
2. Evans Ogeto. the Respondent/Applicant by his replying affidavit sworn on 14th May 2026 contends states that the appeal raises serious and arguable issues touching on ownership of the motor vehicle, proof of negligence and the evidentiary value of the police abstract report. He further avers that the delay in filing the appeal was neither intentional nor inordinate and was occasioned by delay in obtaining the judgment and urges the Court to sustain the appeal for hearing on merit.
3. Judgment in the lower court was delivered on 09th October 2025, while the present appeal was filed on 26th November 2025. The appeal was therefore lodged 18 days beyond the statutory period of 30 days provided under section 79G of the Civil Procedure Act.
4. The Court has nevertheless considered the Memorandum of Appeal and finds that it raises triable issues touching on ownership of the motor vehicle, proof of negligence and the evidentiary value of the police abstract report. In Mae Properties Limited v Kibe & another [2017] KECA 238 (KLR), the Court of Appeal emphasized that courts should exercise procedural discretion in a manner that facilitates substantive justice and avoids shutting out parties from the seat of justice where the circumstances justify sustaining proceedings.
5. Guided by the oxygen principle and Article 159(2)(d) of the Constitution, the Court is not persuaded that the delay disclosed in the present matter warrants the drastic remedy of striking out the appeal. The Court further finds that no prejudice has been demonstrated by the Respondent/Applicant sufficient to justify terminating the appeal without hearing it on merit.
6. Consequently, the Notice of Motion dated 08th December 2025 is hereby disallowed. The appeal is deemed as properly filed and properly on record. Costs shall abide the outcome of the appeal.
2. Evans Ogeto. the Respondent/Applicant by his replying affidavit sworn on 14th May 2026 contends states that the appeal raises serious and arguable issues touching on ownership of the motor vehicle, proof of negligence and the evidentiary value of the police abstract report. He further avers that the delay in filing the appeal was neither intentional nor inordinate and was occasioned by delay in obtaining the judgment and urges the Court to sustain the appeal for hearing on merit.
3. Judgment in the lower court was delivered on 09th October 2025, while the present appeal was filed on 26th November 2025. The appeal was therefore lodged 18 days beyond the statutory period of 30 days provided under section 79G of the Civil Procedure Act.
4. The Court has nevertheless considered the Memorandum of Appeal and finds that it raises triable issues touching on ownership of the motor vehicle, proof of negligence and the evidentiary value of the police abstract report. In Mae Properties Limited v Kibe & another [2017] KECA 238 (KLR), the Court of Appeal emphasized that courts should exercise procedural discretion in a manner that facilitates substantive justice and avoids shutting out parties from the seat of justice where the circumstances justify sustaining proceedings.
5. Guided by the oxygen principle and Article 159(2)(d) of the Constitution, the Court is not persuaded that the delay disclosed in the present matter warrants the drastic remedy of striking out the appeal. The Court further finds that no prejudice has been demonstrated by the Respondent/Applicant sufficient to justify terminating the appeal without hearing it on merit.
6. Consequently, the Notice of Motion dated 08th December 2025 is hereby disallowed. The appeal is deemed as properly filed and properly on record. Costs shall abide the outcome of the appeal.