1. Before this court for determination is an application dated 4th March 2024. The Application seeks two prayers;
(i) That the Memorandum of appeal dated 5th April 2018 filed by the Appellant herein on 5th April 2019 and served upon the 2nd Respondent on 10th June 2019 be struck out and;
(ii) That the costs of this application and the appeal be awarded to the 2nd Respondent
2. The application is supported by the affidavit of Faith Nteere, a Senior Legal Manager of the 2nd Respondent, sworn on 4th March 2024. In her affidavit, she depones that the ruling of the Senior Resident Magistrate’s Court, which is the subject of the intended be appeal, was delivered on 24th May 2018. She asserts that the Appellant inordinately delayed in filing a Memorandum of Appeal. Consequently, the Appellant filed a Notice of Motion dated 11th October 2018 in High Court Miscellaneous Application No. 339 of 2018, seeking enlargement of time to lodge the appeal. She avers that the Appellant attributed the delay to his mistaken believe that leave to appeal had to be sought from the subordinate court before filing an appeal in the High Court. It was only after the dismissal of that application that he sought enlargement of time. She further states that the 2nd Respondent opposed the said application on the grounds that it was filed six months after the delivery of the ruling intended to be appealed from, and that the reasons advanced for the delay were not excusable.
3. She states that on 28th November 2018, this court granted the Appellant ten (10) days to file and serve the Memorandum of Appeal on or before 10th December 2018. However, the Appellant failed to comply with those orders. Subsequently on 4th April 2019, the court issued final orders directing the Appellant to file and serve the Memorandum of Appeal by the end of the day on 10th April 2019, failing which the application would stand dismissed. Although the Appellant filed the Memorandum of Appeal on 5th April 2019, he failed to serve it within the time directed by the court and only effected service approximately sixty (60) days later, without seeking leave or moving the court appropriately. She further avers that the Appellant did not seek leave to file the Memorandum of Appeal out of time once the leave granted on 28th November 2018 lapsed. In her view, the Appellant filed an appeal out of time in contravention of Section 79G of the Civil Procedure Act, without leave of the court as contemplated under Section 95 of the Civil Procedure Act. She contends that permitting the appeal to stand would be an affront to justice and fair administration, and that the appeal effectively abated on 10th December 2018, rendering the Memorandum of Appeal filed on 5th April 2019 incompetent and liable to be struck out.
4. The Appellant opposed the application through a Replying Affidavit sworn by Caroline Nzilani Mutuku on 24th May 2024 in which she depones that she is one of the legal representatives of the Appellant’s estate. She contends that the Applicant is guilty of laches and that the application is riddled with contradictions and mere allegations, intended to obfuscate the real issues in dispute and prejudice the court against the Appellant.
5. She states that her late father was the plaintiff in Machakos Chief Magistrate’s Court Civil Case No. 1089 of 2010, in which judgment was delivered on 25th September 2012, awarding him the sum claimed together with costs and interest at court rates. The Respondents appealed against the said judgment to the High Court vide Civil Appeal No. 173 of 2012, which appeal was dismissed with costs. Following the dismissal, the Respondents made part payment of the decretal sum, leaving an outstanding balance of Kshs 1,145,727 as at 13th December 2017. She further avers that when her late father applied for execution of the balance, the application was heard before a Senior Resident Magistrate, who set aside the decree issued by a Senior Principal Magistrate. Aggrieved by that decision, the deceased filed an application for leave to appeal, which was dismissed on 1st October 2018. She depones that although the deceased was desirous of appealing against the ruling delivered on 24th May 2018, the delay in lodging the appeal was occasioned by the foregoing circumstances and his ill health.
6. She avers that pursuant to the application dated 11th October 2018, the court granted leave to appeal out of time on 4th April 2019. In compliance with that order, the Memorandum of Appeal was filed on 5th April 2019, which was within the time allowed. She further avers that the delay in serving the Respondents was not inordinate, as her late father was unwell, and service was effected approximately two months after filing. She adds that a copy of the Memorandum of Appeal was also transmitted to the Respondents by email. She contends that the 2nd Respondent brought the present application after inordinate delay, noting that directions in the appeal had already been taken and that the 2nd Respondent had been aware of the appeal since service was effected on 10th June 2019. She further avers that the 2nd Respondent never objected to the continuation of the proceedings despite being served and having participated in the matter, including being served with mention notices as early as 8th May 2019, even before formal service of the Memorandum of Appeal. She maintains that it is therefore unreasonable for the 2nd Respondent to approach the court nearly four years later seeking to strike out the appeal on account of service.
The application was canvassed by written submissions. 2nd Respondent/Applicant’s Submissions
7. The 2nd Respondent/Applicant commenced its submissions with a brief introduction of the application dated 4th March 2024, as set out in the supporting affidavit. The Applicant identified two issues for determination, that is whether the Memorandum of Appeal ought to be struck out, and whether the costs of the application should be awarded to the 2nd Respondent. On the first issue, the Applicant placed reliance on Section 1A(3) of the Civil Procedure Act and the decisions in Ace Engineering and Building Co. Limited v National Bank of Kenya Limited [2019] eKLR and Moschion v Mwangi (Environment and Land Case No. 350 of 2018) [2013] eKLR. It submitted that the court should take cognizance of the fact that the orders issued on 4th April 2019 were a culmination of repeated non-compliance with earlier court orders granting enlargement of time, and that no justifiable explanation had been advanced for such non-adherence.
8. The Applicant further submitted that the order issued on 4th April 2019 was a self-executing order, the import of which was that the Appellant was expressly put on notice that non-compliance would attract sanctions, including dismissal. It was therefore contended that the Appellant’s failure to serve the Memorandum of Appeal within the time directed by the court rendered the appeal incurably defective and liable to be struck out.
9. On the issue of costs, the Applicant relied on the decision in Republic v Rosemary Wairimu Munene, ex parte Ihururu Dairy Farmers Cooperative Society Limited in urging the court to award it the costs of the application.
10. In conclusion, the 2nd Respondent/Applicant prayed that the application be allowed as sought.
Appellant/Respondent’s Submissions
11. The Appellant/Respondent began his submissions by stating the facts of the case as elaborated in the reply affidavit filed in opposition to the present application. He addressed three issues, that is: (i) whether the Applicant was duly served with the Memorandum of Appeal in time; (ii) whether the 2nd Respondent’s/Applicant’s advocates were properly on record; and (iii) whether the Applicant’s application met the threshold for striking out the appeal.
12. On the first issue, the Appellant submitted that the court granted leave on 4th April 2019 to file the appeal out of time, and that the Memorandum of Appeal was advanced to the Applicant’s previous advocates on record. He contended that no affidavit of service was filed returning copies of the Memorandum as duly served and stamped. He further submitted that the Applicant did not deny receiving a copy of the Memorandum of Appeal transmitted by email to info@karanukanai.com on 6th April 2019, nor the stamp affixed to the Memorandum, but merely alleged that formal service occurred seven months after the lapse of the orders issued on 28th November 2018.
13. The Appellant relied on Shadrack Arap Baiywo v Bodi Bach [1987] eKLR in submitting that service of pleadings in court is regulated under the Civil Procedure Rules, 2016 and must ordinarily be effected by a qualified process server, followed by an affidavit of service accompanied by evidence of acknowledgement by the recipient. He further submitted that the Applicant was guilty of laches and inordinate delay, noting that there was no process server’s affidavit on record. It is the Appellant’s submission, that the Applicants were in fact duly served in 2019 both by email and physically, and had consistently participated in the proceedings. He contended that the present application was a deliberate attempt to delay or frustrate the appeal after directions for hearing had already been taken.
14. On the issue of whether the Applicant’s advocates were properly on record, the Appellant referred to Order 9 Rule 5 of the Civil Procedure Rules. He submitted that the firm of Nyawira Milimu and Omotto Advocates came on record during the pendency of the appeal, but did not comply with the provisions of Order 9 Rules 5 and 6 as no Notice of Change was filed between them and the firm of Karanu Kanai & Co. Advocates. Accordingly, he contended that the firm of Nyawira Milimu and Omotto Advocates was not properly on record, and that the present application filed by the Applicant ought to be dismissed with costs.
Analysis and determination
15. I have considered the present application, the supporting affidavit, the Replying Affidavit and the submissions filed. The issue for determination is the legal effect of the service of the memorandum of appeal out of time and without leave of the court, and whether such non-compliance renders the appeal incompetent and liable to be struck out.
16. While Section 79G of the Civil Procedure Act governs the time for filing an appeal, it is important to distinguish between filing and service. Jurisprudence in Kenya has consistently treated filing within time or within extended time as the jurisdictional act that clothes the appellate court with authority, while service, though mandatory, falls within the realm of procedural compliance subject to the court’s discretion.
17. In the present case, the record shows that the Appellant filed the Memorandum of Appeal on 5th April 2019 which was within the period granted by the court vide the orders of 4th April 2019. This fact is not contested. The jurisdiction of this court was therefore properly invoked. The contestation relates to late service which was effected approximately sixty days later. The question then is whether such delay in the absence of a contemporaneous application for extension of time, is fatal.
18. This court is guided by Section 1A and 1B of the Civil Procedure Act, which impose on the court and litigants alike the duty to facilitate the just, expeditious, proportionate and affordable resolution of disputes. These provisions require the court to exercise procedural discretion in a manner that advances substantive justice rather than impedes it. Further guidance is found in Order 50 Rule 6 of the Civil Procedure Rules, which empowers the court to enlarge time even where the time originally fixed has expired. The discretion under this provision is broad and is intended to cure procedural lapses where no prejudice is occasioned.
19. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, while underscoring the importance of timelines, was also categorical that extension of time is a discretionary remedy to be exercised judiciously, taking into account the circumstances of each case.
20. Turning to the facts before this court, several considerations weigh in favour of allowing the late service:
21. First, the Memorandum of Appeal was filed in time, and therefore the appeal was not filed in a jurisdictional vacuum.
22. Second, the record demonstrates that the Respondents, including the 2nd Respondent, were aware of the existence of the appeal as early as 2019. The 2nd Respondent does not deny receipt of the Memorandum of Appeal by email shortly after filing, nor does it deny participation in subsequent court mentions and directions. This conduct points to actual notice, which is the underlying purpose of service.
23. Third, no prejudice has been demonstrated by the 2nd Respondent arising from the delay in service. There is no allegation that the delay impaired its ability to respond to the appeal, prepare submissions or access the record.
24. Fourth, the delay complained of occurred in the context of a litigant whose health challenges has not been contested and while illness alone is not a carte blanche to disregard court orders, it is a relevant factor in the equitable exercise of discretion, particularly where the lapse complained of relates to service rather than filing.
25. Finally, striking out the appeal at this stage, several years after directions were taken, would have the effect of shutting out an appeal without a determination on the merits notwithstanding that the appeal was properly lodged within the extended time.
26. In light of the foregoing, the court is satisfied that although there was non-compliance with the timelines for service, the same did not go to the root of the appeal and is a procedural lapse capable of being cured by the court in the exercise of its discretion.
27. Accordingly, the court declines to strike out the Memorandum of Appeal. In order to balance the interests of justice and to mark the court’s disapproval of non-compliance with its orders, the Appellant shall pay costs of Kshs 20, 000/= to the 2nd Respondents costs in respect of the present application.
Orders accordingly.
Delivered, Dated and Signed this 22nd day of January 2026
(i) That the Memorandum of appeal dated 5th April 2018 filed by the Appellant herein on 5th April 2019 and served upon the 2nd Respondent on 10th June 2019 be struck out and;
(ii) That the costs of this application and the appeal be awarded to the 2nd Respondent
2. The application is supported by the affidavit of Faith Nteere, a Senior Legal Manager of the 2nd Respondent, sworn on 4th March 2024. In her affidavit, she depones that the ruling of the Senior Resident Magistrate’s Court, which is the subject of the intended be appeal, was delivered on 24th May 2018. She asserts that the Appellant inordinately delayed in filing a Memorandum of Appeal. Consequently, the Appellant filed a Notice of Motion dated 11th October 2018 in High Court Miscellaneous Application No. 339 of 2018, seeking enlargement of time to lodge the appeal. She avers that the Appellant attributed the delay to his mistaken believe that leave to appeal had to be sought from the subordinate court before filing an appeal in the High Court. It was only after the dismissal of that application that he sought enlargement of time. She further states that the 2nd Respondent opposed the said application on the grounds that it was filed six months after the delivery of the ruling intended to be appealed from, and that the reasons advanced for the delay were not excusable.
3. She states that on 28th November 2018, this court granted the Appellant ten (10) days to file and serve the Memorandum of Appeal on or before 10th December 2018. However, the Appellant failed to comply with those orders. Subsequently on 4th April 2019, the court issued final orders directing the Appellant to file and serve the Memorandum of Appeal by the end of the day on 10th April 2019, failing which the application would stand dismissed. Although the Appellant filed the Memorandum of Appeal on 5th April 2019, he failed to serve it within the time directed by the court and only effected service approximately sixty (60) days later, without seeking leave or moving the court appropriately. She further avers that the Appellant did not seek leave to file the Memorandum of Appeal out of time once the leave granted on 28th November 2018 lapsed. In her view, the Appellant filed an appeal out of time in contravention of Section 79G of the Civil Procedure Act, without leave of the court as contemplated under Section 95 of the Civil Procedure Act. She contends that permitting the appeal to stand would be an affront to justice and fair administration, and that the appeal effectively abated on 10th December 2018, rendering the Memorandum of Appeal filed on 5th April 2019 incompetent and liable to be struck out.
4. The Appellant opposed the application through a Replying Affidavit sworn by Caroline Nzilani Mutuku on 24th May 2024 in which she depones that she is one of the legal representatives of the Appellant’s estate. She contends that the Applicant is guilty of laches and that the application is riddled with contradictions and mere allegations, intended to obfuscate the real issues in dispute and prejudice the court against the Appellant.
5. She states that her late father was the plaintiff in Machakos Chief Magistrate’s Court Civil Case No. 1089 of 2010, in which judgment was delivered on 25th September 2012, awarding him the sum claimed together with costs and interest at court rates. The Respondents appealed against the said judgment to the High Court vide Civil Appeal No. 173 of 2012, which appeal was dismissed with costs. Following the dismissal, the Respondents made part payment of the decretal sum, leaving an outstanding balance of Kshs 1,145,727 as at 13th December 2017. She further avers that when her late father applied for execution of the balance, the application was heard before a Senior Resident Magistrate, who set aside the decree issued by a Senior Principal Magistrate. Aggrieved by that decision, the deceased filed an application for leave to appeal, which was dismissed on 1st October 2018. She depones that although the deceased was desirous of appealing against the ruling delivered on 24th May 2018, the delay in lodging the appeal was occasioned by the foregoing circumstances and his ill health.
6. She avers that pursuant to the application dated 11th October 2018, the court granted leave to appeal out of time on 4th April 2019. In compliance with that order, the Memorandum of Appeal was filed on 5th April 2019, which was within the time allowed. She further avers that the delay in serving the Respondents was not inordinate, as her late father was unwell, and service was effected approximately two months after filing. She adds that a copy of the Memorandum of Appeal was also transmitted to the Respondents by email. She contends that the 2nd Respondent brought the present application after inordinate delay, noting that directions in the appeal had already been taken and that the 2nd Respondent had been aware of the appeal since service was effected on 10th June 2019. She further avers that the 2nd Respondent never objected to the continuation of the proceedings despite being served and having participated in the matter, including being served with mention notices as early as 8th May 2019, even before formal service of the Memorandum of Appeal. She maintains that it is therefore unreasonable for the 2nd Respondent to approach the court nearly four years later seeking to strike out the appeal on account of service.
The application was canvassed by written submissions. 2nd Respondent/Applicant’s Submissions
7. The 2nd Respondent/Applicant commenced its submissions with a brief introduction of the application dated 4th March 2024, as set out in the supporting affidavit. The Applicant identified two issues for determination, that is whether the Memorandum of Appeal ought to be struck out, and whether the costs of the application should be awarded to the 2nd Respondent. On the first issue, the Applicant placed reliance on Section 1A(3) of the Civil Procedure Act and the decisions in Ace Engineering and Building Co. Limited v National Bank of Kenya Limited [2019] eKLR and Moschion v Mwangi (Environment and Land Case No. 350 of 2018) [2013] eKLR. It submitted that the court should take cognizance of the fact that the orders issued on 4th April 2019 were a culmination of repeated non-compliance with earlier court orders granting enlargement of time, and that no justifiable explanation had been advanced for such non-adherence.
8. The Applicant further submitted that the order issued on 4th April 2019 was a self-executing order, the import of which was that the Appellant was expressly put on notice that non-compliance would attract sanctions, including dismissal. It was therefore contended that the Appellant’s failure to serve the Memorandum of Appeal within the time directed by the court rendered the appeal incurably defective and liable to be struck out.
9. On the issue of costs, the Applicant relied on the decision in Republic v Rosemary Wairimu Munene, ex parte Ihururu Dairy Farmers Cooperative Society Limited in urging the court to award it the costs of the application.
10. In conclusion, the 2nd Respondent/Applicant prayed that the application be allowed as sought.
Appellant/Respondent’s Submissions
11. The Appellant/Respondent began his submissions by stating the facts of the case as elaborated in the reply affidavit filed in opposition to the present application. He addressed three issues, that is: (i) whether the Applicant was duly served with the Memorandum of Appeal in time; (ii) whether the 2nd Respondent’s/Applicant’s advocates were properly on record; and (iii) whether the Applicant’s application met the threshold for striking out the appeal.
12. On the first issue, the Appellant submitted that the court granted leave on 4th April 2019 to file the appeal out of time, and that the Memorandum of Appeal was advanced to the Applicant’s previous advocates on record. He contended that no affidavit of service was filed returning copies of the Memorandum as duly served and stamped. He further submitted that the Applicant did not deny receiving a copy of the Memorandum of Appeal transmitted by email to info@karanukanai.com on 6th April 2019, nor the stamp affixed to the Memorandum, but merely alleged that formal service occurred seven months after the lapse of the orders issued on 28th November 2018.
13. The Appellant relied on Shadrack Arap Baiywo v Bodi Bach [1987] eKLR in submitting that service of pleadings in court is regulated under the Civil Procedure Rules, 2016 and must ordinarily be effected by a qualified process server, followed by an affidavit of service accompanied by evidence of acknowledgement by the recipient. He further submitted that the Applicant was guilty of laches and inordinate delay, noting that there was no process server’s affidavit on record. It is the Appellant’s submission, that the Applicants were in fact duly served in 2019 both by email and physically, and had consistently participated in the proceedings. He contended that the present application was a deliberate attempt to delay or frustrate the appeal after directions for hearing had already been taken.
14. On the issue of whether the Applicant’s advocates were properly on record, the Appellant referred to Order 9 Rule 5 of the Civil Procedure Rules. He submitted that the firm of Nyawira Milimu and Omotto Advocates came on record during the pendency of the appeal, but did not comply with the provisions of Order 9 Rules 5 and 6 as no Notice of Change was filed between them and the firm of Karanu Kanai & Co. Advocates. Accordingly, he contended that the firm of Nyawira Milimu and Omotto Advocates was not properly on record, and that the present application filed by the Applicant ought to be dismissed with costs.
Analysis and determination
15. I have considered the present application, the supporting affidavit, the Replying Affidavit and the submissions filed. The issue for determination is the legal effect of the service of the memorandum of appeal out of time and without leave of the court, and whether such non-compliance renders the appeal incompetent and liable to be struck out.
16. While Section 79G of the Civil Procedure Act governs the time for filing an appeal, it is important to distinguish between filing and service. Jurisprudence in Kenya has consistently treated filing within time or within extended time as the jurisdictional act that clothes the appellate court with authority, while service, though mandatory, falls within the realm of procedural compliance subject to the court’s discretion.
17. In the present case, the record shows that the Appellant filed the Memorandum of Appeal on 5th April 2019 which was within the period granted by the court vide the orders of 4th April 2019. This fact is not contested. The jurisdiction of this court was therefore properly invoked. The contestation relates to late service which was effected approximately sixty days later. The question then is whether such delay in the absence of a contemporaneous application for extension of time, is fatal.
18. This court is guided by Section 1A and 1B of the Civil Procedure Act, which impose on the court and litigants alike the duty to facilitate the just, expeditious, proportionate and affordable resolution of disputes. These provisions require the court to exercise procedural discretion in a manner that advances substantive justice rather than impedes it. Further guidance is found in Order 50 Rule 6 of the Civil Procedure Rules, which empowers the court to enlarge time even where the time originally fixed has expired. The discretion under this provision is broad and is intended to cure procedural lapses where no prejudice is occasioned.
19. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, while underscoring the importance of timelines, was also categorical that extension of time is a discretionary remedy to be exercised judiciously, taking into account the circumstances of each case.
20. Turning to the facts before this court, several considerations weigh in favour of allowing the late service:
21. First, the Memorandum of Appeal was filed in time, and therefore the appeal was not filed in a jurisdictional vacuum.
22. Second, the record demonstrates that the Respondents, including the 2nd Respondent, were aware of the existence of the appeal as early as 2019. The 2nd Respondent does not deny receipt of the Memorandum of Appeal by email shortly after filing, nor does it deny participation in subsequent court mentions and directions. This conduct points to actual notice, which is the underlying purpose of service.
23. Third, no prejudice has been demonstrated by the 2nd Respondent arising from the delay in service. There is no allegation that the delay impaired its ability to respond to the appeal, prepare submissions or access the record.
24. Fourth, the delay complained of occurred in the context of a litigant whose health challenges has not been contested and while illness alone is not a carte blanche to disregard court orders, it is a relevant factor in the equitable exercise of discretion, particularly where the lapse complained of relates to service rather than filing.
25. Finally, striking out the appeal at this stage, several years after directions were taken, would have the effect of shutting out an appeal without a determination on the merits notwithstanding that the appeal was properly lodged within the extended time.
26. In light of the foregoing, the court is satisfied that although there was non-compliance with the timelines for service, the same did not go to the root of the appeal and is a procedural lapse capable of being cured by the court in the exercise of its discretion.
27. Accordingly, the court declines to strike out the Memorandum of Appeal. In order to balance the interests of justice and to mark the court’s disapproval of non-compliance with its orders, the Appellant shall pay costs of Kshs 20, 000/= to the 2nd Respondents costs in respect of the present application.
Orders accordingly.
Delivered, Dated and Signed this 22nd day of January 2026