(Being an appeal from an order of Hon. L.B. Koech, dated 18.3.24 in Milimani Cmcc no 3734 of 2017)
The suit before the magistrate court was filed on the 29.5.2017 by the respondent’s advocate. The appellant herein filed a memorandum of appearance dated 4.9.2017 and statement of defence on 13.9.2017. On 29.6.2021 the appellant’s advocate filed a notice of appointment dated 7.4.2021. The matter was fixed for hearing on several occasions but was adjourned for various reasons. The appellant, vide a notice of motion dated 7.7.2021, sought to enjoin a third party to the suit and leave was granted.
It appears that the appellant abandoned her quest to enjoin a third party and thereafter filed an application dated 3.1.2023 seeking to strike out the appellant’s name from the suit. The application was dismissed and the matter set down for hearing. The matter was thereafter set down for hearing on the 18.3.2024. Come the 18.3.24, the appellant’s advocate indicated to court that it had filed an additional list of documents which were served upon the respondent’s advocate on the eve of the hearing date. The respondent’s advocate applied to have the list of documents filed by the appellant, obviously without leave, expunged from the record. The trial court in a brief ruling stated as follows:
“I have heard the parties. This matter was certified ready for hearing on 11.6.2018. The defendant has had enough time to file their documents. The defendants knew the matter was set for hearing today. Both parties are ready to proceed with the plaintiff’s case; as such the documents filed by the defendant without leave of the court and served upon the plaintiff yesterday are expunged from the record.”
Aggrieved by the said ruling, the appellant appealed in this court, principally on the ground that the learned magistrate erred in law and in fact in failing to note that the documents in question had been used in a previous application and that the court denied the appellant a fair hearing by allowing the expunging of the appellant’s list of documents. In particular, the appellant’s case is that the learned magistrate erred in law by failing to appreciate that justice should be administered without undue regard to technicalities.
The appellant submitted that the right to a fair hearing as guaranteed in article 50 of the constitution as read with article 159 of the constitution ought to have persuaded the trial magistrate to allow the documents filed to remain on record. The appellant cited the decided case of Patrick Kiruja Kithinji v Victor Mugira Marete Civil Appeal no. 48 of 2014 at Meru court of appeal.
The respondent on the other hand submitted that the appellant was guilty of laches and that the trial magistrate could not be faulted for expunging documents which were filed without leave of the court and on the eve of the hearing date.
ANALYSIS AND DETERMINATION
This appeal turns on the issue whether the learned magistrate correctly exercised her discretion in expunging from the court records documents which had been filed out of time and without leave of the court. However, before the court delves into the issue whether the learned magistrate correctly exercised her discretion, I wish to address an issue which I note from the record. Section 75 of the Civil Procedure Act as read with Order 43 of the Civil Procedure Rules sets out the orders from which an appeal shall lie as of right. As regards other orders, an appeal shall only lie with the leave of the court making such order or the court to which an appeal would lie if leave were granted. The order subject of this appeal is not one of those where an appeal lies as of right. It was therefore incumbent upon the appellant to first seek leave of the court that made the order or from the high court where the appeal has been filed. No leave was sought and granted and in my considered finding, the appeal herein is incompetent and, on this ground, alone, the same ought to fail.
The parties have however submitted on substantive issues which I wish to address. There is no dispute that the appellant filed a list of documents out of time and without leave of the court. Interestingly, even after filing the documents in flagrant breach of the rules, the appellant never sought leave of the court to regularize the position. Instead, the appellant behaved as if he had a right to file a document in an ongoing case at whim and at any time. The appellant cites the provision of Article 159 (2) (d) of the constitution, which requires courts to administer justice without undue regard to procedural technicalities. Kenyan courts have consistently ruled that Article 159 (2) (d) is not a ‘panacea’ or cure for all procedural ills, negligence or blatant disregard of court rules. Article 159 (2) (d) was never meant to overthrow established rules of procedure or create disorder. While procedure should not be used to defeat justice, procedural rules provide certainty and fairness. It cannot be that a party waits until on the eve of hearing and without leave of the court before they file their documents. This has the effect of causing prejudice to the opposite party who needs time to prepare for their case. In this regard, the cases of Jaldesa Tuke Dabelo v IEBC & Another (2015) eKLR; Raila Odinga & 5 others v IEBC & 3 others, among others are a constant reminder that Article 159 (2) (d) is not a cure for all procedural ills.
The order to expunge from the court record documents which had been filed out of time and without leave of the court was an exercise of discretion by the trial court. It is trite law that an appellate court will only interfere with a trial court’s exercise of judicial discretion if it is shown that the magistrate misdirected themselves in law, cited an improper consideration, failed to consider relevant factors, or reached a decision that is plainly wrong or causes a miscarriage of justice. The guiding principle was firmly established in the landmark case of Mbogo & Another v Shah (1968) EA 93.
In this case, the appellant ‘sneaked in’ documents in the court file on the eve of the hearing contrary to established rules and without leave. Without seeking leave to have the documents properly deemed as filed, the trial court cannot be faulted for the manner it exercised its discretion.
I have said enough to demonstrate that the appeal herein lacks merit and is for rejection. The same is dismissed with costs.
DATED, SIGNED AND DELIVERED via teams this 9 th JULY 2026
D.O. ONYANGO
JUDGE
1
The suit before the magistrate court was filed on the 29.5.2017 by the respondent’s advocate. The appellant herein filed a memorandum of appearance dated 4.9.2017 and statement of defence on 13.9.2017. On 29.6.2021 the appellant’s advocate filed a notice of appointment dated 7.4.2021. The matter was fixed for hearing on several occasions but was adjourned for various reasons. The appellant, vide a notice of motion dated 7.7.2021, sought to enjoin a third party to the suit and leave was granted.
It appears that the appellant abandoned her quest to enjoin a third party and thereafter filed an application dated 3.1.2023 seeking to strike out the appellant’s name from the suit. The application was dismissed and the matter set down for hearing. The matter was thereafter set down for hearing on the 18.3.2024. Come the 18.3.24, the appellant’s advocate indicated to court that it had filed an additional list of documents which were served upon the respondent’s advocate on the eve of the hearing date. The respondent’s advocate applied to have the list of documents filed by the appellant, obviously without leave, expunged from the record. The trial court in a brief ruling stated as follows:
“I have heard the parties. This matter was certified ready for hearing on 11.6.2018. The defendant has had enough time to file their documents. The defendants knew the matter was set for hearing today. Both parties are ready to proceed with the plaintiff’s case; as such the documents filed by the defendant without leave of the court and served upon the plaintiff yesterday are expunged from the record.”
Aggrieved by the said ruling, the appellant appealed in this court, principally on the ground that the learned magistrate erred in law and in fact in failing to note that the documents in question had been used in a previous application and that the court denied the appellant a fair hearing by allowing the expunging of the appellant’s list of documents. In particular, the appellant’s case is that the learned magistrate erred in law by failing to appreciate that justice should be administered without undue regard to technicalities.
The appellant submitted that the right to a fair hearing as guaranteed in article 50 of the constitution as read with article 159 of the constitution ought to have persuaded the trial magistrate to allow the documents filed to remain on record. The appellant cited the decided case of Patrick Kiruja Kithinji v Victor Mugira Marete Civil Appeal no. 48 of 2014 at Meru court of appeal.
The respondent on the other hand submitted that the appellant was guilty of laches and that the trial magistrate could not be faulted for expunging documents which were filed without leave of the court and on the eve of the hearing date.
ANALYSIS AND DETERMINATION
This appeal turns on the issue whether the learned magistrate correctly exercised her discretion in expunging from the court records documents which had been filed out of time and without leave of the court. However, before the court delves into the issue whether the learned magistrate correctly exercised her discretion, I wish to address an issue which I note from the record. Section 75 of the Civil Procedure Act as read with Order 43 of the Civil Procedure Rules sets out the orders from which an appeal shall lie as of right. As regards other orders, an appeal shall only lie with the leave of the court making such order or the court to which an appeal would lie if leave were granted. The order subject of this appeal is not one of those where an appeal lies as of right. It was therefore incumbent upon the appellant to first seek leave of the court that made the order or from the high court where the appeal has been filed. No leave was sought and granted and in my considered finding, the appeal herein is incompetent and, on this ground, alone, the same ought to fail.
The parties have however submitted on substantive issues which I wish to address. There is no dispute that the appellant filed a list of documents out of time and without leave of the court. Interestingly, even after filing the documents in flagrant breach of the rules, the appellant never sought leave of the court to regularize the position. Instead, the appellant behaved as if he had a right to file a document in an ongoing case at whim and at any time. The appellant cites the provision of Article 159 (2) (d) of the constitution, which requires courts to administer justice without undue regard to procedural technicalities. Kenyan courts have consistently ruled that Article 159 (2) (d) is not a ‘panacea’ or cure for all procedural ills, negligence or blatant disregard of court rules. Article 159 (2) (d) was never meant to overthrow established rules of procedure or create disorder. While procedure should not be used to defeat justice, procedural rules provide certainty and fairness. It cannot be that a party waits until on the eve of hearing and without leave of the court before they file their documents. This has the effect of causing prejudice to the opposite party who needs time to prepare for their case. In this regard, the cases of Jaldesa Tuke Dabelo v IEBC & Another (2015) eKLR; Raila Odinga & 5 others v IEBC & 3 others, among others are a constant reminder that Article 159 (2) (d) is not a cure for all procedural ills.
The order to expunge from the court record documents which had been filed out of time and without leave of the court was an exercise of discretion by the trial court. It is trite law that an appellate court will only interfere with a trial court’s exercise of judicial discretion if it is shown that the magistrate misdirected themselves in law, cited an improper consideration, failed to consider relevant factors, or reached a decision that is plainly wrong or causes a miscarriage of justice. The guiding principle was firmly established in the landmark case of Mbogo & Another v Shah (1968) EA 93.
In this case, the appellant ‘sneaked in’ documents in the court file on the eve of the hearing contrary to established rules and without leave. Without seeking leave to have the documents properly deemed as filed, the trial court cannot be faulted for the manner it exercised its discretion.
I have said enough to demonstrate that the appeal herein lacks merit and is for rejection. The same is dismissed with costs.
DATED, SIGNED AND DELIVERED via teams this 9 th JULY 2026
D.O. ONYANGO
JUDGE
1