Introduction
1. Before court is a notice of motion dated 11th June 2025 filed by the appellant seeking the following orders;
a) Spent
b) That the orders issued by this Honourable court on 10th June 2025 striking out the appeal for non compliance with orders of 13th March 2025 be set aside and the court be pleased to reinstate this appeal for hearing and determination on merit.
c) That the costs of this application be in the cause.
2. The application is predicated on the supporting affidavit sworn by the applicant and his advocate on 11th June 2025. The applicant’s case is that he was aware that on 3rd March 2025 this court ordered him to file the record of appeal and submissions in 60 days and in default the appeal would stand dismissed. That his advocate partially complied with the order by filing record of appeal on 5th May 2025. That he also instructed the advocate to file the application dated 8th May 2025, which was filed on 9th May 2025. That he learnt on 10th June 2025 that payments had not been done in regard to the application. That the mistake of his counsel should not be visited on him. That he has since paid for the said application and is now ready to comply with directions of the court. That the appeal raises weighty and triable issues. That no prejudice shall be suffered by the respondent.
3. That counsel for the applicant was aware of the orders of 13th March 2025 and the consequences for non-compliance with the same. That non-compliance was not intentional or contemptuous. That counsel had partially complied with the court’s orders when she received new instructions from the applicant which led to the filing of the application on 9th May 2025, believing to have filed the application. That on 10th June 2025 counsel realized that she had not paid for the said application. That she did not intent to mislead the court and she is remorseful for the oversight on her part.
4. The application was opposed. The respondent filed replying affidavit dated 13th October 2025. He stated that the application was an abuse of the court process. That the applicant failed to comply with orders of 13th May 2025 leading to the striking of the appeal. That on 10th June 2025, the applicant’s counsel misled the court that she had filed an application to amend the Memorandum of appeal.
5. Further that this appeal was admitted a long time ago and for counsel to seek amendment of the appeal at the 11th hour was in bad faith. That the appellant has no triable appeal as he was paid all the purchase price for the suit property only for him to argue that the same did not cover everything on the land. That no justification for noncompliance with court orders has been given.
6. The court directed parties to file their respective submissions in respect of the application. On record are the applicant’s submissions dated 27th January 2026 which have been duly considered.
Analysis and determination
7. The court has carefully considered the application and the response thereto and the applicant’s submissions. The single issue that arise for determination is whether the applicant deserves orders sought.
8. This court has inherent power to make such orders as are necessary for the ends of justice and to prevent the abuse of the court process, as provided for in sections 3A of the Civil Procedure Act.
9. The applicant was on 13th March 2025 granted 60 days to file and serve record of appeal and submissions. He failed to file the same. On 10th June 2025, his counsel informed court that she had filed an application dated 8th May 2025 and that that was the basis for noncompliance.
10. It is therefore clear that no reason for noncompliance was given. There is no nexus between the requirement to comply with the orders of 13th March 2025 and the filing of the application dated 8th May 2025. Compliance was not equivocal and did not depend on whether or not the appellant intended to file an application. The orders of 13th March 2025 were clear and the consequences for noncompliance were unambiguous. Why there was no compliance is a matter only within the applicant’s and his counsel’s knowledge.
11. In the premises, I find no merit in the application dated 11th June 2025, which I dismiss with costs to the respondent.
12. It is so ordered
DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 17TH DAY OF JUNE 2026
In the presence of;
Ms. Nafuye for the applicant
Mr. Monda for the respondent
Court Assistant- Delphine