Before this Court is the Respondent/Applicant’s Notice of Motion dated 18th June 2025 seeking an order that the appeal herein be struck out on account of the Appellants’ failure to file a record of appeal within the time required in law. Costs are sought to be in the cause.
Background
The appeal emanates from the judgment of the Kimilili Principal Magistrate’s Court Civil Suit No. 202 of 2019, delivered on 2nd May 2024, with the decree issuing on 8th August 2024. The Appellants lodged a Memorandum of Appeal dated 9th August 2024. Subsequently, the trial court granted stay of execution pending appeal vide a ruling delivered on 31st October 2024.
The Applicant contends that despite enjoying orders of stay, the Appellants failed to file a record of appeal within what he considers a reasonable time, namely six months from the date of grant of stay, thereby occasioning inordinate delay. He urges the Court to strike out the appeal in the interests of justice.
The Appellants oppose the application, maintaining that they promptly applied for certified copies of proceedings and judgment but the same were not supplied by the trial court. Documentary proof of the request and payment was annexed. It is not disputed that the typed proceedings were eventually issued on 27th November 2025, after the filing of the present application.
The parties did not file written submissions.
Issues for Determination
The Court considers the following issues as falling for determination:
1. Whether the Appellants breached any statutory or procedural timeline in failing to file a record of appeal.
2. Whether the delay complained of is inordinate and inexcusable.
3. Whether the circumstances warrant the striking out of the appeal.
Analysis
Appeals from subordinate courts to this Court are governed by Section 79G of the Civil Procedure Act and Order 42 of the Civil Procedure Rules, 2010. While Order 42 sets out the documents constituting a record of appeal, it does not prescribe a rigid timeline within which such record must be filed, particularly where proceedings are yet to be availed by the trial court.
The Applicant’s assertion that the record of appeal ought to have been filed within six months from the date stay was granted has no basis in statute or in the Rules. The law requires diligence, not adherence to timelines that are neither expressed nor implied.
The material before Court demonstrates that the Appellants applied for certified proceedings and judgment soon after lodging the appeal. The Applicant does not controvert this position. Indeed, the Court record confirms that the proceedings were only supplied on 27th November 2025. A record of appeal cannot reasonably be compiled in the absence of typed proceedings, which are a foundational component thereof.
Delay occasioned by the court registry is not delay attributable to a litigant. To hold otherwise would be to punish a party for circumstances beyond their control. The Court is satisfied that the Appellants exercised reasonable diligence and that the delay complained of has been sufficiently explained.
The power to strike out an appeal is draconian and must be exercised sparingly. It is only invoked where delay is deliberate, contumelious, and inexcusable, and where no lesser sanction would suffice. The circumstances of this case do not meet that threshold.
As for the argument that the appeal is not arguable, that is a matter reserved for determination at the substantive hearing. It is not for resolution at an interlocutory stage such as this.
While the Applicant asserts prejudice arising from delayed enjoyment of the fruits of judgment, it bears emphasis that the stay of execution was lawfully granted by a court of competent jurisdiction. Any inconvenience flowing therefrom cannot, without more, justify the striking out of an appeal.
Conclusion and Orders
Upon careful consideration of the material before Court, the Court finds that:
1. No statutory or procedural timeline has been breached by the Appellants.
2. The delay in filing the record of appeal is adequately explained and was largely occasioned by the late supply of typed proceedings.
3. The interests of justice favour sustaining, rather than terminating, the appeal at this stage.
Accordingly, the Notice of Motion dated 18th June 2025 is dismissed.
Costs shall be in the cause.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF FEBRUARY, 2026.
…………………………………………….
E. C. CHERONO
JUDGE
In the presence of:
1. Appellant/Advocate-absent.
2. Respondent/Advocate-absent.
3. Diana C/A.
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