Introduction & Background
1. Through the Notice of Motion dated 28 th April 2026, the Appellant seeks to set aside and/or vary the order of 15 th April 2026 that struck out his appeal for want of leave to file the appeal out of time. He thus urges the court to reinstate the appeal so it can be heard on its merits. The application is supported by the affidavit of the Appellant’s counsel, George N. Karanja, sworn on 28 th April 2026 and it is opposed by the Respondent through the Grounds of Opposition dated 13 th May 2026. Even though the court directed that the parties file written submissions, only those of the Respondent are on record.
Analysis and Determination
2. The sole issue for the court’s determination is whether the court ought to review and set aside the order striking out the Appellant’s appeal for want of leave to file the appeal out of time. Without belaboring, it has not been contested that this court (Rutto J.,) in HCCCMISC No. E164 of 2025 delivered a ruling on 9 th April 2026 where it stated that “ The Applicant is granted leave to file and serve Memorandum of Appeal against the judgment delivered on 15th March 2025 in Kithimani CMCC No. E065 of 2021; The memorandum of appeal shall be filed within 14 days of this ruling." It appears that the court that struck out the appeal on 15 th April 2026 for want of leave probably overlooked the existence of the subsisting order for leave or had no sight of the court record in HCCCMISC No. E164 of 2025 which granted leave. I find this to be an error apparent on the face of the record that this court can correct and review (see National Bank of Kenya Limited v Ndungu Njau [1996] KLR 469 ). I also find that the Respondent's Grounds of Opposition focus on delay, lack of merit and failure to deposit security but it does not engage with the central factual point that leave had already been granted by the court in the previous ruling.
3. Since the existence of the ruling of 9 th April 2026 is not disputed, the next issue is whether the Appellant satisfied the conditions set out therein. As stated, the Appellant was to file his appeal within 14 days of the ruling. The record indicates that he filed the Memorandum of Appeal on the same day of the ruling. Whereas the Respondent states that the Appellant has no deposited security, my perusal of the ruling reveals that this condition related to stay of execution and not the leave to appeal. The Appellant is seeking reinstatement of the appeal itself and not a stay and I find that the issue of security is a separate matter.
4. Overall, I find that the court clearly erred in striking out the appeal on 15 th April 2026 for want of leave when the leave had been granted on 9 th April 2026 and was still subsisting. The Appellant fully satisfied the filing condition by lodging the Memorandum of Appeal on 9 th April 2026 which was well within the 14-day window. The Respondent's submissions do not rebut these facts and instead focus on ancillary issues like security for stay, which are irrelevant to the question of whether the appeal should have been struck out.
Conclusion and Disposition
5. In the foregoing, I find merit in the Appellant’s application dated 28 th April 2026. The court’s order of 15 th April 2026 striking out the appeal for want of leave is set aside with the consequence that the appeal is reinstated. Since the error was that of the court, there is no order as to costs.
DATED SIGNED AND DELIVERED virtually this 14 TH DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Mwanzia holding brief for Mr. Ndumia for the Applellant/Applicant
2. Mr. Gichimu for the Respondent
3. Abdisalan- Court Assistant
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1. Through the Notice of Motion dated 28 th April 2026, the Appellant seeks to set aside and/or vary the order of 15 th April 2026 that struck out his appeal for want of leave to file the appeal out of time. He thus urges the court to reinstate the appeal so it can be heard on its merits. The application is supported by the affidavit of the Appellant’s counsel, George N. Karanja, sworn on 28 th April 2026 and it is opposed by the Respondent through the Grounds of Opposition dated 13 th May 2026. Even though the court directed that the parties file written submissions, only those of the Respondent are on record.
Analysis and Determination
2. The sole issue for the court’s determination is whether the court ought to review and set aside the order striking out the Appellant’s appeal for want of leave to file the appeal out of time. Without belaboring, it has not been contested that this court (Rutto J.,) in HCCCMISC No. E164 of 2025 delivered a ruling on 9 th April 2026 where it stated that “ The Applicant is granted leave to file and serve Memorandum of Appeal against the judgment delivered on 15th March 2025 in Kithimani CMCC No. E065 of 2021; The memorandum of appeal shall be filed within 14 days of this ruling." It appears that the court that struck out the appeal on 15 th April 2026 for want of leave probably overlooked the existence of the subsisting order for leave or had no sight of the court record in HCCCMISC No. E164 of 2025 which granted leave. I find this to be an error apparent on the face of the record that this court can correct and review (see National Bank of Kenya Limited v Ndungu Njau [1996] KLR 469 ). I also find that the Respondent's Grounds of Opposition focus on delay, lack of merit and failure to deposit security but it does not engage with the central factual point that leave had already been granted by the court in the previous ruling.
3. Since the existence of the ruling of 9 th April 2026 is not disputed, the next issue is whether the Appellant satisfied the conditions set out therein. As stated, the Appellant was to file his appeal within 14 days of the ruling. The record indicates that he filed the Memorandum of Appeal on the same day of the ruling. Whereas the Respondent states that the Appellant has no deposited security, my perusal of the ruling reveals that this condition related to stay of execution and not the leave to appeal. The Appellant is seeking reinstatement of the appeal itself and not a stay and I find that the issue of security is a separate matter.
4. Overall, I find that the court clearly erred in striking out the appeal on 15 th April 2026 for want of leave when the leave had been granted on 9 th April 2026 and was still subsisting. The Appellant fully satisfied the filing condition by lodging the Memorandum of Appeal on 9 th April 2026 which was well within the 14-day window. The Respondent's submissions do not rebut these facts and instead focus on ancillary issues like security for stay, which are irrelevant to the question of whether the appeal should have been struck out.
Conclusion and Disposition
5. In the foregoing, I find merit in the Appellant’s application dated 28 th April 2026. The court’s order of 15 th April 2026 striking out the appeal for want of leave is set aside with the consequence that the appeal is reinstated. Since the error was that of the court, there is no order as to costs.
DATED SIGNED AND DELIVERED virtually this 14 TH DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Mwanzia holding brief for Mr. Ndumia for the Applellant/Applicant
2. Mr. Gichimu for the Respondent
3. Abdisalan- Court Assistant
2 | Page