1. The Respondent filed a Notice of Motion application dated 1st July 2025 under Section 79G of the Civil Procedure Act, Order 42 Rule 1 and Order 42 Rule 32 of the Civil Procedure Rules.
2. The Respondent seeks for orders that the appeal be struck out and that costs of the application and the appeal be paid by the Appellant.
3. The Respondent seeks to strike out the appeal on the ground that it was never properly instituted. The Respondent states that the Appellant failed to file a Memorandum of Appeal within the prescribed period and instead erroneously filed a Replying Affidavit from an unrelated matter, High Court Family Division Miscellaneous Application No. E032 of 2024, Philomena Getrude Bandari v Mwabu Chigir Muye, which bore no relevance to the present proceedings. It is further stated that the Memorandum of Appeal was only filed on 27th May 2025, well outside the statutory timeline and without leave of the court.
4. The Respondent also pointed to a related application in High Court Civil Appeal No. 45 of 2025, Southern Engineering Company Limited v Marble Construction Company Limited, where an attempt to consolidate the matter with the present appeal was dismissed on 13th May 2025 after the court observed that no Memorandum of Appeal had been filed and only an affidavit from another case was on record. According to the Respondent, that finding confirms the absence of a competent appeal.
5. The Respondent maintained that no leave has been sought or granted to validate the late filing and, consequently, there is no properly instituted appeal before the court. The application is therefore made to prevent the continued expenditure of judicial time and resources on what is alleged to be a fatally defective appeal.
6. The Appellant filed a Replying Affidavit sworn on 30th January 2026 by Isaac Ouko, the Court Process Server No. 0264, who deposed that he was instructed to file an appeal against the judgment in Mombasa CMCC No. 1021 of 2020 delivered on 29th January 2025. He stated that the requisite filing fees of Kshs. 1,550 was paid on 27th February 2025 and that the appeal was assigned High Court Civil Appeal No. E048 of 2025 on the same date.
7. He explained that, through an inadvertent error, he uploaded a Replying Affidavit from an unrelated family matter instead of the Memorandum of Appeal dated 26th February 2025. He maintained that the mistake was innocent and that the document mistakenly uploaded had no connection with the present appeal. That the appeal was lodged within the thirty-day period prescribed under Section 79G of the Civil Procedure Act, as evidenced by the timely payment of filing fees and allocation of an appeal number.
8. The deponent further stated that the Record of Appeal was subsequently filed on 16th June 2025 upon payment of the requisite fees. That the Appellant had also filed an application seeking either recognition of the appeal as properly filed or, alternatively, extension of time to regularize the filing. That striking out the appeal would occasion substantial prejudice by denying the Appellant a hearing on the merits, while the Respondent would suffer no prejudice, particularly because a related appeal, HCCA No. E045 of 2025, arising from the same judgment, is already pending before the court.
9. The Appellant also filed a Notice of Motion application dated 16th October 2025 pursuant to Section 79G and 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules. The Appellant seeks for orders for enlargement of time for filing the Record of Appeal against the judgment delivered on 29th January 2025 in Mombasa CMCC No. 1021 of 2020, that the Record of Appeal filed on 16th June 2025 in Appeal No. E048 of 2025 be admitted and directions given forthwith, and for costs.
10. The application is premised on grounds that that the Appellant lodged the appeal against the judgment in Mombasa CMCC No. 1021 of 2020 within the thirty-day period prescribed under Section 79G of the Civil Procedure Act and paid the requisite filing fees on time. However, through an inadvertent mistake, it uploaded a Replying Affidavit from an unrelated family matter instead of the Memorandum of Appeal dated 26th February 2025. The Appellant maintained that the error was innocent and that the wrongly uploaded document bore no relation to the appeal.
11. The Appellant further stated that after learning of a related appeal, HCCA No. E045 of 2025, arising from the same judgment, its advocates sought to have the two appeals mentioned and later consolidated. An application for consolidation was, however, dismissed on 13th May 2025 after the court observed that the appeal file contained only a Replying Affidavit from a different matter. The Appellant averred that upon discovering the error, it uploaded the Memorandum of Appeal on 27th May 2025 and subsequently filed the Record of Appeal on 16th June 2025.
12. The Appellant stated that the mistake was procedural rather than substantive, that they acted promptly to rectify it, and that failure to extend time would unjustly deny them an opportunity to be heard on appeal. The Appellant further contended that the Respondent will suffer no prejudice, particularly because the Respondent has its own appeal, HCCA No. E045 of 2025, arising from the same judgment.
13. In opposition, the Respondent filed a Replying Affidavit sworn on 5th February 2026 by Clinton Gitonga, the Legal and Compliance Officer, that there is no competent appeal before the court capable of supporting the relief sought. The Respondent stated that an appeal from the Magistrates’ Court can only be instituted by filing a Memorandum of Appeal within thirty days of the impugned judgment, but the Appellant instead filed a Replying Affidavit from an unrelated matter, Misc. Application No. E032 of 2022, Philomena Getrude Bandari v Mwarabu Chigir Muye.
14. According to the Respondent, the judgment was delivered on 29th January 2025 and the deadline for filing a Memorandum of Appeal expired on 1st March 2025. The Memorandum of Appeal was only filed on 27th May 2025, approximately 88 days out of time and without leave of court, rendering it null and incapable of instituting a valid appeal.
15. The Respondent further stated that the present application is misconceived because it seeks extension of time to file a Record of Appeal, yet no statutory timeline exists for filing a Record of Appeal in the High Court, the critical timeline relates to filing the Memorandum of Appeal. That the Appellant is attempting to regularize a fatally defective appeal through the backdoor by obtaining orders relating to the Record of Appeal. The Respondent also relies on the ruling delivered on 13th May 2025 by Justice Florence Wangari in HCCA No. E045 of 2025, which found that the present appeal file contained only a Replying Affidavit relating to a different family matter and dismissed an application for consolidation.
16. The Respondent maintained that the ruling remains unchallenged and binding, and that granting the orders sought would effectively amount to sitting on appeal against that decision. Consequently, the Respondent asserted that the appeal was never properly instituted, the subsequent Memorandum of Appeal was filed out of time without leave, and the entire appeal is fatally defective. The court was therefore urged to dismiss the application with costs.
17. The court gave directions for parties to file submissions in respect of the two applications. The Appellant in their submissions dated 16th February 2026 contended that the court should exercise its discretion to enlarge time and admit the Record of Appeal, arguing that it had taken all necessary steps to lodge the appeal within the thirty-day period prescribed under Section 79G of the Civil Procedure Act. That following the judgment delivered on 29th January 2025, it paid the requisite filing fees on 27th February 2025 and was issued with an appeal number, HCCA No. E048 of 2025, thereby reasonably believing that the appeal had been properly filed and was awaiting directions.
18. The Appellant explained that because both its appeal and the Respondent’s Appeal No. E045 of 2025 arose from the same judgment, it sought to have the matters mentioned and consolidated. It was only after the court dismissed the consolidation application on 13th May 2025, upon noting that no Memorandum of Appeal was on record, that counsel discovered that a Replying Affidavit from an unrelated family matter had mistakenly been uploaded instead of the Memorandum of Appeal.
19. The Appellant maintained that the error was innocent and attributable solely to counsel, and that upon discovering it, the Memorandum of Appeal and subsequently the Record of Appeal were promptly filed. The Appellant argued that the sequence of events demonstrated a genuine intention to pursue the appeal and that the mistake should not be visited upon the litigant. Reliance was placed on the decisions in LNN v MOO (minor suing through his father and the next friend of OI) [2021] KEHC 1712 (KLR) and Wachira Karani v Bildad Wachira [2016] KEHC 6334 (KLR) for the principle that litigants should not be punished for honest mistakes of counsel.
20. On prejudice, the Appellant submitted that the Respondent would suffer no prejudice if the application were allowed since both Appeal Nos. E045 of 2025 and E048 of 2025 arise from the same judgment and the Respondent has itself challenged that judgment through a separate appeal. The Appellant argued that justice would be best served by allowing both appeals to be heard and determined on their merits.
21. Regarding the Respondent’s application dated 1st July 2025 seeking dismissal of Appeal No. E048 of 2025, the Appellant contended that the application should fail because sufficient grounds had been demonstrated to justify enlargement of time and admission of the Record of Appeal. It argued that once the court finds merit in the application for extension of time and regularization of the appeal, it cannot simultaneously dismiss the appeal, and therefore the dismissal application ought to be rejected with costs.
Analysis
22. This court has considered the Notice of Motion application dated 1st July 2025, the Replying Affidavit sworn on 30th January 2026, the Notice of Motion application dated 16th October 2025, and Submissions by the Appellant. The issues for determination are: -
(a) Whether the appeal was filed out of time and is therefore incompetent
(b) Whether the court should enlarge time and deem the appeal as properly filed
(c) Whether the Respondent will suffer prejudice
(d) Whether the appeal should be struck out
(e) What orders on costs should issue
23. On whether the appeal was filed out of time and is therefore incompetent, Section 79G of the Civil Procedure Act provides: -
Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
24. The principles governing extension of time were set out by the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) where the court held that: -
“Discretion to extend time was indeed unfettered. It was incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there were any extenuating circumstances that could enable the court to exercise its discretion in favour of the applicant.
The court ought to consider the following principles in exercising the discretion to extend time for filing an appeal:
a. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;
b. A party who sought extension of time had the burden of laying a basis for it to the satisfaction of the court;
c. Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case to case basis;
d. Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court;
e. Whether there would be any prejudice suffered by the respondents if the extension was granted;
f. Whether the application had been brought without undue delay; and;
g. Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.”
25. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1991] 2EA 231, the Court of Appeal held that: -
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well stated that in general the matters which this Court takes into account in deciding whether to grant an extension of time, are first, the length of the delay, secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted, and fourthly, the degree of prejudice to the respondent if the application is granted.”
26. On whether the court should enlarge time and deem the appeal as properly filed, the Appellant contends that the appeal was lodged within time, filing fees were paid, and an appeal number was duly allocated. The difficulty arose when an incorrect document was uploaded in place of the Memorandum of Appeal. The Appellant attributes the error to inadvertence by counsel and urges the court not to punish a litigant for an advocate’s mistake.
27. This court has considered the explanation advanced. The mistake complained of relates to the uploading of an incorrect document in the electronic filing system. There is no evidence that the omission was deliberate or intended to obstruct the course of justice.
28. In Belinda Murai & 9 others v Amos Wainaina [1979] KECA 25 (KLR), the court stated that: -
“A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel though in the case of a junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate.”
29. This court is persuaded that the error was excusable and has been satisfactorily explained.
30. On whether the Respondent will suffer prejudice, the Respondent argued that the appeal is incurably defective and that judicial resources should not be expended on an incompetent appeal.
31. However, no substantial prejudice has been demonstrated that cannot be compensated by an award of costs. The dispute concerns the right of appeal, which is a substantive right deserving protection where the interests of justice so demand.
32. This court is guided by Article 159(2)(d) of the Constitution and the decision in Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others [2013] KESC 6 (KLR) where the Supreme Court emphasized that: -
“The essence of that provision is that a court of law should not allow the prescriptions of procedure and form to trump the primary object, of dispensing substantive justice to the parties. This principle of merit, however, in our opinion, bears no meaning cast-in-stone and which suits all situations of dispute resolution. On the contrary, the court as an agency of the processes of justice, is called upon to appreciate all the relevant circumstances and the requirements of a particular case, and conscientiously determine the best course.”
33. The Court is further mindful that striking out pleadings is a draconian remedy which should be resorted to sparingly. In DT Dobie & Company (Kenya) Limited v Muchina & another [1980] KECA 3 (KLR), the court cautioned against summarily terminating proceedings where a matter can be sustained and determined on its merits.
34. Having found that the Appellant has furnished a satisfactory explanation for the procedural error and that the delay, if any, is capable of being regularized through the court’s discretionary powers under Section 79G of the Civil Procedure Act, this court finds no basis for striking out the appeal.
35. The interests of justice would be better served by allowing the appeal to proceed for hearing on its merits rather than terminating it on account of a curable procedural defect.
Determination
36. Consequently, this court makes the following orders: -
(a) The Appellant’s Notice of Motion application dated 24th July 2025 is hereby allowed.
(b) Time for filing and/or regularizing the appeal is hereby extended.
(c) The Memorandum of Appeal and Record of Appeal already filed, or subsequently filed pursuant to these orders, shall be deemed as properly on record upon payment of any requisite fees.
(d) The Respondent’s Notice of Motion dated 1st July 2025 seeking to strike out the appeal is hereby dismissed.
(e) Costs of the Appellant’s application shall abide the outcome of the appeal.
(f) The appeal shall be mentioned before the Deputy Registrar for directions on hearing.
Dated and delivered virtually at Mombasa this 25th day of June, 2026.
………………………..
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Mr. Kongere Advocate h/b for Mr. Karina Advocate for the Appellant
Mr. Kilonzo Advocate for the Respondent
Ms. Salwa Court Assistant
2. The Respondent seeks for orders that the appeal be struck out and that costs of the application and the appeal be paid by the Appellant.
3. The Respondent seeks to strike out the appeal on the ground that it was never properly instituted. The Respondent states that the Appellant failed to file a Memorandum of Appeal within the prescribed period and instead erroneously filed a Replying Affidavit from an unrelated matter, High Court Family Division Miscellaneous Application No. E032 of 2024, Philomena Getrude Bandari v Mwabu Chigir Muye, which bore no relevance to the present proceedings. It is further stated that the Memorandum of Appeal was only filed on 27th May 2025, well outside the statutory timeline and without leave of the court.
4. The Respondent also pointed to a related application in High Court Civil Appeal No. 45 of 2025, Southern Engineering Company Limited v Marble Construction Company Limited, where an attempt to consolidate the matter with the present appeal was dismissed on 13th May 2025 after the court observed that no Memorandum of Appeal had been filed and only an affidavit from another case was on record. According to the Respondent, that finding confirms the absence of a competent appeal.
5. The Respondent maintained that no leave has been sought or granted to validate the late filing and, consequently, there is no properly instituted appeal before the court. The application is therefore made to prevent the continued expenditure of judicial time and resources on what is alleged to be a fatally defective appeal.
6. The Appellant filed a Replying Affidavit sworn on 30th January 2026 by Isaac Ouko, the Court Process Server No. 0264, who deposed that he was instructed to file an appeal against the judgment in Mombasa CMCC No. 1021 of 2020 delivered on 29th January 2025. He stated that the requisite filing fees of Kshs. 1,550 was paid on 27th February 2025 and that the appeal was assigned High Court Civil Appeal No. E048 of 2025 on the same date.
7. He explained that, through an inadvertent error, he uploaded a Replying Affidavit from an unrelated family matter instead of the Memorandum of Appeal dated 26th February 2025. He maintained that the mistake was innocent and that the document mistakenly uploaded had no connection with the present appeal. That the appeal was lodged within the thirty-day period prescribed under Section 79G of the Civil Procedure Act, as evidenced by the timely payment of filing fees and allocation of an appeal number.
8. The deponent further stated that the Record of Appeal was subsequently filed on 16th June 2025 upon payment of the requisite fees. That the Appellant had also filed an application seeking either recognition of the appeal as properly filed or, alternatively, extension of time to regularize the filing. That striking out the appeal would occasion substantial prejudice by denying the Appellant a hearing on the merits, while the Respondent would suffer no prejudice, particularly because a related appeal, HCCA No. E045 of 2025, arising from the same judgment, is already pending before the court.
9. The Appellant also filed a Notice of Motion application dated 16th October 2025 pursuant to Section 79G and 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules. The Appellant seeks for orders for enlargement of time for filing the Record of Appeal against the judgment delivered on 29th January 2025 in Mombasa CMCC No. 1021 of 2020, that the Record of Appeal filed on 16th June 2025 in Appeal No. E048 of 2025 be admitted and directions given forthwith, and for costs.
10. The application is premised on grounds that that the Appellant lodged the appeal against the judgment in Mombasa CMCC No. 1021 of 2020 within the thirty-day period prescribed under Section 79G of the Civil Procedure Act and paid the requisite filing fees on time. However, through an inadvertent mistake, it uploaded a Replying Affidavit from an unrelated family matter instead of the Memorandum of Appeal dated 26th February 2025. The Appellant maintained that the error was innocent and that the wrongly uploaded document bore no relation to the appeal.
11. The Appellant further stated that after learning of a related appeal, HCCA No. E045 of 2025, arising from the same judgment, its advocates sought to have the two appeals mentioned and later consolidated. An application for consolidation was, however, dismissed on 13th May 2025 after the court observed that the appeal file contained only a Replying Affidavit from a different matter. The Appellant averred that upon discovering the error, it uploaded the Memorandum of Appeal on 27th May 2025 and subsequently filed the Record of Appeal on 16th June 2025.
12. The Appellant stated that the mistake was procedural rather than substantive, that they acted promptly to rectify it, and that failure to extend time would unjustly deny them an opportunity to be heard on appeal. The Appellant further contended that the Respondent will suffer no prejudice, particularly because the Respondent has its own appeal, HCCA No. E045 of 2025, arising from the same judgment.
13. In opposition, the Respondent filed a Replying Affidavit sworn on 5th February 2026 by Clinton Gitonga, the Legal and Compliance Officer, that there is no competent appeal before the court capable of supporting the relief sought. The Respondent stated that an appeal from the Magistrates’ Court can only be instituted by filing a Memorandum of Appeal within thirty days of the impugned judgment, but the Appellant instead filed a Replying Affidavit from an unrelated matter, Misc. Application No. E032 of 2022, Philomena Getrude Bandari v Mwarabu Chigir Muye.
14. According to the Respondent, the judgment was delivered on 29th January 2025 and the deadline for filing a Memorandum of Appeal expired on 1st March 2025. The Memorandum of Appeal was only filed on 27th May 2025, approximately 88 days out of time and without leave of court, rendering it null and incapable of instituting a valid appeal.
15. The Respondent further stated that the present application is misconceived because it seeks extension of time to file a Record of Appeal, yet no statutory timeline exists for filing a Record of Appeal in the High Court, the critical timeline relates to filing the Memorandum of Appeal. That the Appellant is attempting to regularize a fatally defective appeal through the backdoor by obtaining orders relating to the Record of Appeal. The Respondent also relies on the ruling delivered on 13th May 2025 by Justice Florence Wangari in HCCA No. E045 of 2025, which found that the present appeal file contained only a Replying Affidavit relating to a different family matter and dismissed an application for consolidation.
16. The Respondent maintained that the ruling remains unchallenged and binding, and that granting the orders sought would effectively amount to sitting on appeal against that decision. Consequently, the Respondent asserted that the appeal was never properly instituted, the subsequent Memorandum of Appeal was filed out of time without leave, and the entire appeal is fatally defective. The court was therefore urged to dismiss the application with costs.
17. The court gave directions for parties to file submissions in respect of the two applications. The Appellant in their submissions dated 16th February 2026 contended that the court should exercise its discretion to enlarge time and admit the Record of Appeal, arguing that it had taken all necessary steps to lodge the appeal within the thirty-day period prescribed under Section 79G of the Civil Procedure Act. That following the judgment delivered on 29th January 2025, it paid the requisite filing fees on 27th February 2025 and was issued with an appeal number, HCCA No. E048 of 2025, thereby reasonably believing that the appeal had been properly filed and was awaiting directions.
18. The Appellant explained that because both its appeal and the Respondent’s Appeal No. E045 of 2025 arose from the same judgment, it sought to have the matters mentioned and consolidated. It was only after the court dismissed the consolidation application on 13th May 2025, upon noting that no Memorandum of Appeal was on record, that counsel discovered that a Replying Affidavit from an unrelated family matter had mistakenly been uploaded instead of the Memorandum of Appeal.
19. The Appellant maintained that the error was innocent and attributable solely to counsel, and that upon discovering it, the Memorandum of Appeal and subsequently the Record of Appeal were promptly filed. The Appellant argued that the sequence of events demonstrated a genuine intention to pursue the appeal and that the mistake should not be visited upon the litigant. Reliance was placed on the decisions in LNN v MOO (minor suing through his father and the next friend of OI) [2021] KEHC 1712 (KLR) and Wachira Karani v Bildad Wachira [2016] KEHC 6334 (KLR) for the principle that litigants should not be punished for honest mistakes of counsel.
20. On prejudice, the Appellant submitted that the Respondent would suffer no prejudice if the application were allowed since both Appeal Nos. E045 of 2025 and E048 of 2025 arise from the same judgment and the Respondent has itself challenged that judgment through a separate appeal. The Appellant argued that justice would be best served by allowing both appeals to be heard and determined on their merits.
21. Regarding the Respondent’s application dated 1st July 2025 seeking dismissal of Appeal No. E048 of 2025, the Appellant contended that the application should fail because sufficient grounds had been demonstrated to justify enlargement of time and admission of the Record of Appeal. It argued that once the court finds merit in the application for extension of time and regularization of the appeal, it cannot simultaneously dismiss the appeal, and therefore the dismissal application ought to be rejected with costs.
Analysis
22. This court has considered the Notice of Motion application dated 1st July 2025, the Replying Affidavit sworn on 30th January 2026, the Notice of Motion application dated 16th October 2025, and Submissions by the Appellant. The issues for determination are: -
(a) Whether the appeal was filed out of time and is therefore incompetent
(b) Whether the court should enlarge time and deem the appeal as properly filed
(c) Whether the Respondent will suffer prejudice
(d) Whether the appeal should be struck out
(e) What orders on costs should issue
23. On whether the appeal was filed out of time and is therefore incompetent, Section 79G of the Civil Procedure Act provides: -
Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
24. The principles governing extension of time were set out by the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) where the court held that: -
“Discretion to extend time was indeed unfettered. It was incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there were any extenuating circumstances that could enable the court to exercise its discretion in favour of the applicant.
The court ought to consider the following principles in exercising the discretion to extend time for filing an appeal:
a. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;
b. A party who sought extension of time had the burden of laying a basis for it to the satisfaction of the court;
c. Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case to case basis;
d. Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court;
e. Whether there would be any prejudice suffered by the respondents if the extension was granted;
f. Whether the application had been brought without undue delay; and;
g. Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.”
25. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1991] 2EA 231, the Court of Appeal held that: -
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well stated that in general the matters which this Court takes into account in deciding whether to grant an extension of time, are first, the length of the delay, secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted, and fourthly, the degree of prejudice to the respondent if the application is granted.”
26. On whether the court should enlarge time and deem the appeal as properly filed, the Appellant contends that the appeal was lodged within time, filing fees were paid, and an appeal number was duly allocated. The difficulty arose when an incorrect document was uploaded in place of the Memorandum of Appeal. The Appellant attributes the error to inadvertence by counsel and urges the court not to punish a litigant for an advocate’s mistake.
27. This court has considered the explanation advanced. The mistake complained of relates to the uploading of an incorrect document in the electronic filing system. There is no evidence that the omission was deliberate or intended to obstruct the course of justice.
28. In Belinda Murai & 9 others v Amos Wainaina [1979] KECA 25 (KLR), the court stated that: -
“A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel though in the case of a junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate.”
29. This court is persuaded that the error was excusable and has been satisfactorily explained.
30. On whether the Respondent will suffer prejudice, the Respondent argued that the appeal is incurably defective and that judicial resources should not be expended on an incompetent appeal.
31. However, no substantial prejudice has been demonstrated that cannot be compensated by an award of costs. The dispute concerns the right of appeal, which is a substantive right deserving protection where the interests of justice so demand.
32. This court is guided by Article 159(2)(d) of the Constitution and the decision in Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others [2013] KESC 6 (KLR) where the Supreme Court emphasized that: -
“The essence of that provision is that a court of law should not allow the prescriptions of procedure and form to trump the primary object, of dispensing substantive justice to the parties. This principle of merit, however, in our opinion, bears no meaning cast-in-stone and which suits all situations of dispute resolution. On the contrary, the court as an agency of the processes of justice, is called upon to appreciate all the relevant circumstances and the requirements of a particular case, and conscientiously determine the best course.”
33. The Court is further mindful that striking out pleadings is a draconian remedy which should be resorted to sparingly. In DT Dobie & Company (Kenya) Limited v Muchina & another [1980] KECA 3 (KLR), the court cautioned against summarily terminating proceedings where a matter can be sustained and determined on its merits.
34. Having found that the Appellant has furnished a satisfactory explanation for the procedural error and that the delay, if any, is capable of being regularized through the court’s discretionary powers under Section 79G of the Civil Procedure Act, this court finds no basis for striking out the appeal.
35. The interests of justice would be better served by allowing the appeal to proceed for hearing on its merits rather than terminating it on account of a curable procedural defect.
Determination
36. Consequently, this court makes the following orders: -
(a) The Appellant’s Notice of Motion application dated 24th July 2025 is hereby allowed.
(b) Time for filing and/or regularizing the appeal is hereby extended.
(c) The Memorandum of Appeal and Record of Appeal already filed, or subsequently filed pursuant to these orders, shall be deemed as properly on record upon payment of any requisite fees.
(d) The Respondent’s Notice of Motion dated 1st July 2025 seeking to strike out the appeal is hereby dismissed.
(e) Costs of the Appellant’s application shall abide the outcome of the appeal.
(f) The appeal shall be mentioned before the Deputy Registrar for directions on hearing.
Dated and delivered virtually at Mombasa this 25th day of June, 2026.
………………………..
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Mr. Kongere Advocate h/b for Mr. Karina Advocate for the Appellant
Mr. Kilonzo Advocate for the Respondent
Ms. Salwa Court Assistant