1. Before the Court is the Notice of Motion dated 08th December 2025, supported by the Affidavit of James Bosire Obwori of even date 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.
2. The application is opposed through the Replying Affidavit sworn by Evans Ogeto on 14th May 2026 wherein the Appellant avers that the delay was neither intentional nor inordinate and that the appeal raises serious and arguable issues of law and fact touching on liability and ownership of the motor vehicle.
3. There is no dispute that the Memorandum of Appeal was filed outside the statutory period. The delay complained of, however, was only three days. The Court has also perused the Memorandum of Appeal and notes that the appeal raises arguable issues relating to ownership of the motor vehicle, proof of liability, and the evidentiary value of the police abstract report.
4. In Safaricom Limited v Ocean View Beach Hotel Limited & 2 others [2010] KECA 346 (KLR), the Court of Appeal emphasized that the overriding objective principle is intended to facilitate substantive justice and that courts should exercise their powers in a manner that attains just, proportionate and affordable resolution of disputes. The Court is guided by that decision together with the oxygen principles under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution.
5. In the present matter, the Court is not persuaded that the short delay in filing the appeal warrants the drastic remedy of striking out the entire appeal, particularly where the appeal raises arguable grounds deserving determination on merit. Further, the Applicant has not demonstrated any prejudice incapable of compensation by an award of costs should the appeal proceed for hearing.
6. Consequently, the Notice of Motion dated 08th December 2025 is hereby dismissed. The appeal is deemed as properly on record. Costs shall abide the outcome of the appeal.
2. The application is opposed through the Replying Affidavit sworn by Evans Ogeto on 14th May 2026 wherein the Appellant avers that the delay was neither intentional nor inordinate and that the appeal raises serious and arguable issues of law and fact touching on liability and ownership of the motor vehicle.
3. There is no dispute that the Memorandum of Appeal was filed outside the statutory period. The delay complained of, however, was only three days. The Court has also perused the Memorandum of Appeal and notes that the appeal raises arguable issues relating to ownership of the motor vehicle, proof of liability, and the evidentiary value of the police abstract report.
4. In Safaricom Limited v Ocean View Beach Hotel Limited & 2 others [2010] KECA 346 (KLR), the Court of Appeal emphasized that the overriding objective principle is intended to facilitate substantive justice and that courts should exercise their powers in a manner that attains just, proportionate and affordable resolution of disputes. The Court is guided by that decision together with the oxygen principles under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution.
5. In the present matter, the Court is not persuaded that the short delay in filing the appeal warrants the drastic remedy of striking out the entire appeal, particularly where the appeal raises arguable grounds deserving determination on merit. Further, the Applicant has not demonstrated any prejudice incapable of compensation by an award of costs should the appeal proceed for hearing.
6. Consequently, the Notice of Motion dated 08th December 2025 is hereby dismissed. The appeal is deemed as properly on record. Costs shall abide the outcome of the appeal.