REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CIVIL APPEAL NO. E031 OF 2025
(Coram: Andayi W. F., J.)
MAUREEN NJERI MUNINJA…………………………..………………………APPELLANT
VERSUS
MOSES MWENJERA NDABA……………………….…………..………RESPONDENT
(Being an appeal from the Ruling and Order of the Hon. Ruth Ogolla Resident Magistrate, in Kwale Magistrate’s Court Civil Case No. E204 of 2022, delivered on 20 th August 2025)
JUDGMENT
1. There is no appeal filed herein, leave alone a competent appeal and it is unfortunate that all the proceedings conducted herein have been done in vacuo. Order 42 Rule 1(1) of the Civil Procedure Rules provides with respect to filing appeals that:
Order 42 (1). Form of appeal
(1) Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.
2. With respect to the present matter there are two important issues to note from the above provisions, first that an appeal shall be in the form of a memorandum of appeal and second that the same shall be signed in the same manner as a pleading.
3. In the present matter, there is no memorandum of appeal filed. There is a document titled memorandum of appeal drawn and filed by Wonanio & Kabiaro, Advocates for the Appellant that is undated and unsigned. It bears the court electronic date stamp showing that it was filed on 29 th September 2025. It bears the exhibit stamp which reads as follows;
“This is the exhibit marked MNM – 7 referred to in the Affidavit/Declaration of MAUREEN NJERI MUHINJA Sworn/Declared before me this 26 day of September 2025 at Kwale
...........................................................................................................
Commissioner for Oaths.”
4. This document is an annexure under paragraph 12 in the supporting affidavit sworn by Maureen Njeri Muhinja on 26 th September 2025 in a notice of motion application of the same date. That paragraph reads in part as follows:
“12. ... I am further informed by my advocate which advise I verily believe to be true that my advocate has prepared a memorandum of appeal this ( sic) seek more time to prepare other documents for appeal. (Annexed and Marked MNM – 7 is a record (sic) of appeal prepared by my advocate). ( Emphasis by underlining mine).
5. Reading the above paragraph of the supporting affidavit where it is indicated that the advocate had prepared (not filed) a memorandum of appeal together with the fact that the annexed memorandum of appeal was not signed or dated, it follows that as at the time of filing the application, there was no appeal yet filed by way of a memorandum of appeal. There was no other memorandum of appeal filed afterwards. This is not a mere procedural impropriety that can be cured under the provisions of Article 159(2)(d) of the Constitution that calls upon courts to do justice without undue regard to procedural technicalities or under the overriding objective under sections 1A and 1B of the Civil Procedure Act which requires that, proceedings be conducted with the aim of just, expeditious, proportionate and affordable resolution of the civil disputes.
6. Secondly, if the court was to consider the memorandum of appeal as filed, it will still be caught up for striking out for not having been signed. Order 2 Rule 16 which provides for the manner of signing pleadings states that:
16. Pleading to be signed
Every pleading shall be signed by an advocate, or recognised agent (as defined by Order 9, rule 2), or by the party if he sues or defends in person.
7. In this case, the appellant was appearing in the proceedings by an advocate, Wonanio & Kabiaro, Advocates who were required to have signed the memorandum of appeal. The language of both Order 42 Rule 1 and Order 2 is mandatory that the memorandum of appeal has to be signed. Some authorities have it that an unsigned pleading is not fatal to the case and the same can be cured by amendment or by simply asking the party concerned to sign it. The Court of Appeal by majority (Bosire, J.A. dissenting) while considering the issue of an unsigned plaint in the case of Vipin Maganlal Shah & another v Investment & Mortgages Bank Limited & 2 others [2001] KECA 357 (KLR) held that:
“If a plaint is not signed either by the plaintiff in person or his recognized agent or his advocate, ... a party who files an unsigned plaint runs a very grave risk of having that plaint struck out as not complying with the law.”
8. Following that decision, I would find that had the memorandum of appeal herein been properly filed, I would have found it incompetent for not being signed, at least at the earliest possible time when the error ought to have been discovered.
9. Having said all that, I must state that the said application dated 26 th September 2025 was withdrawn on 18 th March 2026 meaning that there was completely nothing on which the proceedings herein could continue.
10. However, before the withdrawal, the respondent had filed an application dated 22 nd October 2025 seeking an order that the appeal filed herein be struck out for failure to comply with the statutory timelines for filing an appeal within 30 days of the ruling. It follows from the above findings that since there was no appeal on record, there is none to strike out.
11. Consequently, following this court ‘s finding that there was no appeal filed herein and further, the application dated 26 th September 2025 having been withdrawn on 18 th March 2026, the subsequent proceedings were conducted without any anchor at all and the same are vacated and this file is closed.
12. In the event that I am wrong in my finding that the documents filed herein were incompetent and therefore not worthy of an appeal, I would find on the application filed by the respondent dated 22 nd October 2025 that the appeal filed by the appellant was incompetent for being filed out of time and without leave being sought either before or even after filing of the appeal. There is no application by the appellant to regularize the supposed appeal. I have seen on the Judiciary’s Case Tracking System (CTS) a document by counsel for the appellant titled “certificate of urgency” dated 23 rd April 2026 wherein it is stated that it was meant to regularize the appeal filed out of time. However, there is no accompanying application seeking any such orders. It seems to me that the document was placed on the system but filing was not done.
13. Considering that the issue upon which the matter was determined was raised by the court at the time of writing the ruling, I will make a modest order for costs of KShs 20,000/= to be paid by Maureen Njeri Muhinja to Moses Mwenjere Ndaba to compensate him for the expense he has had to go through to appear and respond to the supposed appeal.
14. Right of appeal granted.
Dated, signed and delivered at Kwale on the Virtual Platform, MicrosftTeams this 7 th day of August 2026.
ANDAYI W. F.
JUDGE
In the presence of:
... for Applicant.
... for the Respondent.
Ummu Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
ANDAYI W. F.
JUDGE
FOOTNOTES
[1]
ENDNOTES
[i]
KWALE HC CA No. E031/20254
IN THE HIGH COURT OF KENYA AT KWALE
CIVIL APPEAL NO. E031 OF 2025
(Coram: Andayi W. F., J.)
MAUREEN NJERI MUNINJA…………………………..………………………APPELLANT
VERSUS
MOSES MWENJERA NDABA……………………….…………..………RESPONDENT
(Being an appeal from the Ruling and Order of the Hon. Ruth Ogolla Resident Magistrate, in Kwale Magistrate’s Court Civil Case No. E204 of 2022, delivered on 20 th August 2025)
JUDGMENT
1. There is no appeal filed herein, leave alone a competent appeal and it is unfortunate that all the proceedings conducted herein have been done in vacuo. Order 42 Rule 1(1) of the Civil Procedure Rules provides with respect to filing appeals that:
Order 42 (1). Form of appeal
(1) Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.
2. With respect to the present matter there are two important issues to note from the above provisions, first that an appeal shall be in the form of a memorandum of appeal and second that the same shall be signed in the same manner as a pleading.
3. In the present matter, there is no memorandum of appeal filed. There is a document titled memorandum of appeal drawn and filed by Wonanio & Kabiaro, Advocates for the Appellant that is undated and unsigned. It bears the court electronic date stamp showing that it was filed on 29 th September 2025. It bears the exhibit stamp which reads as follows;
“This is the exhibit marked MNM – 7 referred to in the Affidavit/Declaration of MAUREEN NJERI MUHINJA Sworn/Declared before me this 26 day of September 2025 at Kwale
...........................................................................................................
Commissioner for Oaths.”
4. This document is an annexure under paragraph 12 in the supporting affidavit sworn by Maureen Njeri Muhinja on 26 th September 2025 in a notice of motion application of the same date. That paragraph reads in part as follows:
“12. ... I am further informed by my advocate which advise I verily believe to be true that my advocate has prepared a memorandum of appeal this ( sic) seek more time to prepare other documents for appeal. (Annexed and Marked MNM – 7 is a record (sic) of appeal prepared by my advocate). ( Emphasis by underlining mine).
5. Reading the above paragraph of the supporting affidavit where it is indicated that the advocate had prepared (not filed) a memorandum of appeal together with the fact that the annexed memorandum of appeal was not signed or dated, it follows that as at the time of filing the application, there was no appeal yet filed by way of a memorandum of appeal. There was no other memorandum of appeal filed afterwards. This is not a mere procedural impropriety that can be cured under the provisions of Article 159(2)(d) of the Constitution that calls upon courts to do justice without undue regard to procedural technicalities or under the overriding objective under sections 1A and 1B of the Civil Procedure Act which requires that, proceedings be conducted with the aim of just, expeditious, proportionate and affordable resolution of the civil disputes.
6. Secondly, if the court was to consider the memorandum of appeal as filed, it will still be caught up for striking out for not having been signed. Order 2 Rule 16 which provides for the manner of signing pleadings states that:
16. Pleading to be signed
Every pleading shall be signed by an advocate, or recognised agent (as defined by Order 9, rule 2), or by the party if he sues or defends in person.
7. In this case, the appellant was appearing in the proceedings by an advocate, Wonanio & Kabiaro, Advocates who were required to have signed the memorandum of appeal. The language of both Order 42 Rule 1 and Order 2 is mandatory that the memorandum of appeal has to be signed. Some authorities have it that an unsigned pleading is not fatal to the case and the same can be cured by amendment or by simply asking the party concerned to sign it. The Court of Appeal by majority (Bosire, J.A. dissenting) while considering the issue of an unsigned plaint in the case of Vipin Maganlal Shah & another v Investment & Mortgages Bank Limited & 2 others [2001] KECA 357 (KLR) held that:
“If a plaint is not signed either by the plaintiff in person or his recognized agent or his advocate, ... a party who files an unsigned plaint runs a very grave risk of having that plaint struck out as not complying with the law.”
8. Following that decision, I would find that had the memorandum of appeal herein been properly filed, I would have found it incompetent for not being signed, at least at the earliest possible time when the error ought to have been discovered.
9. Having said all that, I must state that the said application dated 26 th September 2025 was withdrawn on 18 th March 2026 meaning that there was completely nothing on which the proceedings herein could continue.
10. However, before the withdrawal, the respondent had filed an application dated 22 nd October 2025 seeking an order that the appeal filed herein be struck out for failure to comply with the statutory timelines for filing an appeal within 30 days of the ruling. It follows from the above findings that since there was no appeal on record, there is none to strike out.
11. Consequently, following this court ‘s finding that there was no appeal filed herein and further, the application dated 26 th September 2025 having been withdrawn on 18 th March 2026, the subsequent proceedings were conducted without any anchor at all and the same are vacated and this file is closed.
12. In the event that I am wrong in my finding that the documents filed herein were incompetent and therefore not worthy of an appeal, I would find on the application filed by the respondent dated 22 nd October 2025 that the appeal filed by the appellant was incompetent for being filed out of time and without leave being sought either before or even after filing of the appeal. There is no application by the appellant to regularize the supposed appeal. I have seen on the Judiciary’s Case Tracking System (CTS) a document by counsel for the appellant titled “certificate of urgency” dated 23 rd April 2026 wherein it is stated that it was meant to regularize the appeal filed out of time. However, there is no accompanying application seeking any such orders. It seems to me that the document was placed on the system but filing was not done.
13. Considering that the issue upon which the matter was determined was raised by the court at the time of writing the ruling, I will make a modest order for costs of KShs 20,000/= to be paid by Maureen Njeri Muhinja to Moses Mwenjere Ndaba to compensate him for the expense he has had to go through to appear and respond to the supposed appeal.
14. Right of appeal granted.
Dated, signed and delivered at Kwale on the Virtual Platform, MicrosftTeams this 7 th day of August 2026.
ANDAYI W. F.
JUDGE
In the presence of:
... for Applicant.
... for the Respondent.
Ummu Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
ANDAYI W. F.
JUDGE
FOOTNOTES
[1]
ENDNOTES
[i]
KWALE HC CA No. E031/20254