1. Before the Court is the Notice of Motion dated 08th December 2025 seeking orders that the Memorandum of Appeal dated 24th November 2025 and filed on 26th November 2025 be struck out for having been filed out of time and without leave of the Court. The application is supported by the Affidavit of Josephine Kwamboka Omaiko, the Respondent/Applicant who depones that judgment was delivered on 23rd October 2025 and that the statutory thirty days for filing an appeal lapsed on 23rd November 2025. She further states that the Appellant filed the Memorandum of Appeal on 26th November 2025 without first obtaining leave of Court.
2. The application is opposed through the Replying Affidavit of Evans Ogeto, the Appellant/Respondent sworn on 14thMay 2026. He avers that the delay was neither intentional nor inordinate and attributes the same to delay in obtaining proceedings and judgment, inadvertence of previous counsel, and other sufficient cause. The Appellant further contends that the appeal raises serious and arguable issues of law and fact which ought to be heard and determined on merit.
3. It is not disputed that the Memorandum of Appeal was filed three days outside the period stipulated under Section 79G of the Civil Procedure Act. The court is however guided by the oxygen principles under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution requiring courts to facilitate substantive justice without undue regard to procedural technicalities.
4. The court must therefore consider whether the procedural lapse complained of is sufficient to justify terminating the appeal altogether. The overriding objective in civil litigation requires courts to facilitate the fair and proportionate resolution of disputes.
5. In Komu v Komu & another [2024] KECA 168 (KLR), the Court of Appeal exercised its discretion in favour of sustaining the intended appeal after noting that no prejudice had been demonstrated by the respondents if the application was allowed.
6. The Memorandum of Appeal raises substantive issues touching on liability, ownership of the motor vehicle, and the evidentiary value of the police abstract report. The court is therefore reluctant to shut out the appeal on account of a brief delay.
7. Further, the Respondent/Applicant has not demonstrated prejudice sufficient to warrant striking out the appeal.
8. 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 of Evans Ogeto, the Appellant/Respondent sworn on 14thMay 2026. He avers that the delay was neither intentional nor inordinate and attributes the same to delay in obtaining proceedings and judgment, inadvertence of previous counsel, and other sufficient cause. The Appellant further contends that the appeal raises serious and arguable issues of law and fact which ought to be heard and determined on merit.
3. It is not disputed that the Memorandum of Appeal was filed three days outside the period stipulated under Section 79G of the Civil Procedure Act. The court is however guided by the oxygen principles under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution requiring courts to facilitate substantive justice without undue regard to procedural technicalities.
4. The court must therefore consider whether the procedural lapse complained of is sufficient to justify terminating the appeal altogether. The overriding objective in civil litigation requires courts to facilitate the fair and proportionate resolution of disputes.
5. In Komu v Komu & another [2024] KECA 168 (KLR), the Court of Appeal exercised its discretion in favour of sustaining the intended appeal after noting that no prejudice had been demonstrated by the respondents if the application was allowed.
6. The Memorandum of Appeal raises substantive issues touching on liability, ownership of the motor vehicle, and the evidentiary value of the police abstract report. The court is therefore reluctant to shut out the appeal on account of a brief delay.
7. Further, the Respondent/Applicant has not demonstrated prejudice sufficient to warrant striking out the appeal.
8. 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.