1. Before the Court is the Notice of Motion dated 08th December 2025 by the Respondent/Applicant seeking to strike out the appeal on the ground that it was filed outside the period provided under Section 79G of the Civil Procedure Act and without leave of the court.
2. The application is opposed through the Replying Affidavit sworn by Evans Ogeto on 14th May 2026 supported by written submissions of even date. The Appellant deposes that the appeal raises serious and arguable issues of law and fact which ought to be heard on merit, that the delay in filing the appeal was neither intentional nor inordinate and was occasioned by delay in obtaining the judgment. The Appellant further states that liability is highly contested as he was neither the driver nor the registered owner of the subject motor vehicle and urges the court not to summarily terminate the appeal.
3. I have considered the application, the record before the court and the rival submissions. There is no dispute that the judgment appealed against was delivered on 23rd October 2025 in Nyamira MCCC 92 of 2018 and that the appeal was filed 3 days outside the thirty days stipulated under Section 79G of the Civil Procedure Act.
4. In Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others [2018] KECA 791 (KLR), the Court of Appeal emphasized that procedural rules are handmaidens of justice and that courts should avoid striking out proceedings where the defect does not occasion prejudice or affect jurisdiction. The Court further observed that justice should not be sacrificed at the altar of strict procedural compliance and that Article 159(2)(d) of the Constitution requires courts to determine disputes without undue regard to procedural technicalities.
5. In the present matter, although the appeal was filed outside the statutory period, the delay is not shown to be inordinate. The appeal also raises arguable issues touching on liability which ought to be determined on merit. Striking out proceedings is a draconian remedy which should only be resorted to in the clearest of cases. In the circumstances of this case, the interests of justice favour sustaining the appeal so that the dispute may be determined on merit rather than terminated on a procedural lapse.
6. I am therefore persuaded that the justice of the matter lies in applying the oxygen principle and declining to strike out the appeal.
7. Consequently, the Notice of Motion dated 08thDecember 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 supported by written submissions of even date. The Appellant deposes that the appeal raises serious and arguable issues of law and fact which ought to be heard on merit, that the delay in filing the appeal was neither intentional nor inordinate and was occasioned by delay in obtaining the judgment. The Appellant further states that liability is highly contested as he was neither the driver nor the registered owner of the subject motor vehicle and urges the court not to summarily terminate the appeal.
3. I have considered the application, the record before the court and the rival submissions. There is no dispute that the judgment appealed against was delivered on 23rd October 2025 in Nyamira MCCC 92 of 2018 and that the appeal was filed 3 days outside the thirty days stipulated under Section 79G of the Civil Procedure Act.
4. In Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others [2018] KECA 791 (KLR), the Court of Appeal emphasized that procedural rules are handmaidens of justice and that courts should avoid striking out proceedings where the defect does not occasion prejudice or affect jurisdiction. The Court further observed that justice should not be sacrificed at the altar of strict procedural compliance and that Article 159(2)(d) of the Constitution requires courts to determine disputes without undue regard to procedural technicalities.
5. In the present matter, although the appeal was filed outside the statutory period, the delay is not shown to be inordinate. The appeal also raises arguable issues touching on liability which ought to be determined on merit. Striking out proceedings is a draconian remedy which should only be resorted to in the clearest of cases. In the circumstances of this case, the interests of justice favour sustaining the appeal so that the dispute may be determined on merit rather than terminated on a procedural lapse.
6. I am therefore persuaded that the justice of the matter lies in applying the oxygen principle and declining to strike out the appeal.
7. Consequently, the Notice of Motion dated 08thDecember 2025 is hereby dismissed. The appeal is deemed as properly on record. Costs shall abide the outcome of the appeal.