BACKGROUND
1. The appeal herein arises from the decision of the Senior Resident Magistrate, MBITA in ELC case number E-10 of 2021 made on 21 st September 2022
2. The appeal arises from refusal by the magistrate to allow a notice of motion dated 22 nd June 2022 seeking to set aside the ex-parte judgment entered in favor of the plaintiff
3. Upon hearing the application, the court delivered a ruling on 21 st September 2022 dismissing the said application with costs to the respondent
RECORD PROCEEDING /THE APPEA L
4. Looking from the record, I note that the appeal was admitted on 13 th March ,2023 and the court directed filing the record of appeal within 30 days
5. On 11 th October ,2023 Justice Ongondo upon pursuing the application dated 11 th October 2023 granted the applicant a temporary stay.
6. However, on 5 th December, 2023 the application was marked as compromised and a consent was made forbidding the applicants from interfering with the subject matter until the appeal is heard and determined
7. Midway the parties informed the court that they were exploring ADR.
8. On13 th May,2024 when parties appeared in court the Respondent /Applicant herein informed the court that there was no progress on ADR, and further requested the court to dismiss the appeal for the reason that it had taken two (2)years in court.
9. The Court in its own wisdom gave the last date for directions on
8 th July 2024 on the said dates Mr Otieno Advocate appeared in court and
informed the court that he had filed a notice of change dated
28 th of June 2024 in respect of Homa Bay ELC Appeal number
9 of 2024 and sought consolidation of the two files.
10. In response thereto, the respondent denied being aware of the
notice of change. He confirmed service of the record of appeal
and requested the court to give a try to court annexed
mediation Process.
11. In view of the sentiments made the court directed parties to
appear before the Mediator on 8 th August 2024 for the
purpose of Court Annexed Mediation [CAM] and on the said
date parties appeared before the DR and upon making their respective presentations the Deputy Registrar directed that the mediator proceeds to commence the mediation exercise afresh
12. On 4 th November 2024 a report on the progress of mediation was submitted back to the court. The Judge was informed that the parties had agreed that survey was to be done on the disputed parcel and a report had been uploaded in the courts CTS.
13. However, the respondent had his reservations regarding the
report and in opposition he made it clear to court that he was
not agreeable to the survey Report dated 22 nd August, 2024
14. Due to entrenched differences between the parties hereto which could not be resolved through the said report, the court directed that the appeal be heard by way of written submissions.
15. The court gave timelines for filing and serving their respective submissions
16. On 12 th February 2025 the matter was adjourned to 2 nd April
,2025 and both parties were accorded a further chance of
submitting.
17. On 2 nd April 2025 the matter was once again adjourned to 23 rd
April , 2025 and the court gave a ruling date in respect of an application seeking to regularise the record of Appeal.The court then gave a rider that the Respondent had leave to file a supplementary record of Appeal,if he so wished.
18. Hearing was then adjourned to 14 th October ,2025 and the respondent was given a chance to file fresh submissions.
19. On 4 th October 2025 both parties were given another chance to submit and on 27 th November,2025 the earlier orders were extended the court. The then gave a judgment date for 8 th February,2026
20. However, on the date set for delivery of judgment the court raised a red alert regarding the record of appeal which was incomplete and in the interest of justice gave the appellant 30 days to file a fresh record of appeal
21. On 22 nd April, 2026 the respondent raised an issue about the
record of appeal having left out several pages. He informed the
court that he did have supplementary record of appeal
22. On that basis the court then gave directions for compliance
and stated as follows and which I quote:
‘’ The interest of justice requires that the appeal be heard fast or expeditiously .To take time time to strike out the record of appeal and require another filing of the same will delay the appeal .Thus the appellant is given up to Monday 27 th April, 2026 at the close of business to file and serve the fresh record of appeal. In default this appeal shall be struck out automatically for non-compliance .
Once the record of appeal is filed and served on time then the appellant has 21 days to submit not more than five pages of Times New Roman front 12 and the respondent has 21 days to submit in the format specified .Hearing of appeal on 7 th July 2026.
23. The foregoing chronology of events /proceeding guides us to where we have reached as for now ,and how the application dated 28 th April,2026 came into being
24. On 7 th July 2026 both parties were present and the court was informed of the pending application that a had been filed in addition to submissions .
THE APPLICATION
25. The application by way of a notice of motion is made under
order 79G, IA , IB and 3A of the CPA and order 42 rules
2,11,12 and 13 of the CPR
26. The application seeks to strike out the Memorandum of Appeal dated 21 st October 2022 and dismiss the appeal
27. The application is based on the following grounds which are:
-Judgment was delivered in land case number E 010 of 2021
on 27 th January 2022 and the instant appeal was lodged on 24 th October 2022.
-On 22 nd April 2026 the court ordered the appellant to file
a proper record on of appeal by 27 th April , 2026 ,failure of which the appeal shall stand struck out
-The appellants have failed to file a proper record or any record of appeal
-The respondent stands to be highly prejudiced should the
orders sought not be granted
- The records of appeal dated 25 th February 2026 has 39 more pages missing and they only added 13 Pages which he gave the court on 22 nd April 2026 as his supplementary record
-For the sake of equity and justice he prays that the application be allowed
-That this case is for academic purposes as the Court had given orders for Mbita Lawcourt decree to be effected as seen in paragraph 15 by Honorable Ongondo and whatever
the appellants are doing has been overtaken by events
REPLY BY THE APPELLANTS/RESPONDENTS
28. The respondent filed a replying affidavit and a supplementary affidavit in opposing the application
29. The said affidavit has been sworn by Christine Ngani Ligadho
Advocate and made his response Summarized hereunder
• That the Honorable judge was ready to render a ruling on the appeal and set a judgment date
• The on the said date the Judge indicated he could not render a ruling since the ruling of the trial court was missing
• To finally settle the matter a fresh record of appeal was filed on 27 th April ,2026 . That they replaced the documents in their amended record of Appeal with record that were served by the Applicant
• After service the applicant did serve some documents alleging that there were parts of the records that were missing
• The applicant that the even communicated to Miss Adoyo who inquired whether the addition of documents he had served were all ,to which the applicants are formed documents he served will be okay
• That the applicant had an issue with service he would have raised the same in his response and or further submissions.
• That the Applicant has not clearly pointed out the 52 pages that are missing
• That the applicant is seeking the coercion of the appellants into filing documents that he himself is not even aware of
• That Counsel called the Applicant on 27 th April ,2026 via whatapp to inquire the documents he was referring to but the Applicant said he was on the road and would call back
• Later the applicant retorted by saying he didn’t know where the documents were and that the appellants counsel should look for them where he can
• Counsel subsequently left to attend to Oyugis to attend children’s case E004 of 2026 and his colleague proceeded with finishing compiling of a fresh record
• That on coming back his colleague had bound a single copy which was filed on 27 th April 2026 at HomaBay ELC Registry
• That the registry scanning had begun manually documents process and in the registry staff chipped in the process one of the staff sustained an injury
• upon finishing scanning the said registry staff indicated a soft copy would be forwarded but that was not done until 11 am on 28 th April 2026 when he personally walked to the registry and was informed that the said registry staff had reported
• That Counsel found the document abandoned near the scanner and he had to bear the burden of rearranging scanning and rebinding
• He uploaded a copy after delivering a copy to the registry Both hard and soft copy were filed but on different dates
• That the applicant is unreasonably delaying the appeal
• If the orders sought granted the appellant in the light of Article 159 will be greatly prejudiced
APPLICANTS SUBMISSIONS
30. The applicant filed his submissions on 18/6/2026
In his address he seeks to strike out the relying affidavits of and sworn by Ngani Advocate as both were filed out of time
He states that the last day of service was on 14 th May,2026 at 1.30pm; that on 22 nd April ,2026 the court directed the Appellants to file and serve a fresh record of Appeal ; the orders were made in the presence of the respondents; that the record was not filed by 27 April 2026, that the record of appeal was filed by the respondents on 28 April 2026 at 1:30 PM and served at 3:05 PM,; that that the stamp could be backdated ; that he filed the original case in 2021 when documents were being assessed ; that during 2023 the judiciary introduced a tamper proof system ; that during the period he visited the registry to file a physical copy of documents but he was turned down ; that according to him he says he has reason to believe the record was filed out of time.
31. He relies on the authorities of Ndungu & Another (suing as legal representative of the Estate of Jonah Muriithi Kimotho (-deceased] v Kimathi & Another
[Civil Appeal E036 of 2023] 2022 KEHC 17463 [KLR] where it was held that court orders are not made in vain and must be complied with. Bikeri v Abdille (Civil Appeal number E001 of 2022(2022) KEHC 12089 (KL R) which relates to contempt of court orders and the requirements thereof, and ,lastly Florence Kimoi Kimutai & Another vs Francis Chuma (ELC 385 OF 2023) where the court found that the order had not been controverted .
SUBMISSIONS BY THE APPELLANT / RESPONDENT
32. The Appellants/Respondent filed the submissions filed
submissions through their Counsel on 18 th June ,2026;
Counsel states that under order 9 rule 3 of Civil Procedure
rules an affidavit shall be confined to such facts as the
deponent is able to prove of his own knowledge.
This is supported by the authority of Regina Waithira Mwangi Gitau v Boniface Nthenge 2015 eKLR ; Counsel says the issues filed in the affidavit of on 14 th May 26 is within his knowledge ;As to striking out the replying affidavit counsel states that under Order 19 Rule 7 of the Civil Procedure Rules does not bar a court from receiving an affidavit notwithstanding the defect and this is supported by the finding in the case of Lakeview Development Limited versus Belgo Holding Limited and other environment and land case E064 of 2020 [ 2023].
He asks the court to overlook the defects of the affidavit as the intention is clear ;as to whether the memorandum should be struck out Counsel states that no sufficient ground for striking out has been raised that the Honourable Judge was ready to render a ruling on appeal and had set a date for judgement ,however on the material day the court discovered that the ruling was missing ; that the applicant had unprocedurally taken the discretion of the court to declare which record is proper and which is not proper ;that the instant appeal has reached the stage of issuing final judgement ,that the applicant has filed a fresh record of appeal that the applicant had communicated thorough M/s Adoyo regarding additional documents ;that the record is properly filed in accordance with 42 Rule 13 of the Civil Procedure Rules and affirmed in decision in the case of Otieno versus Odhiambo and three others (Land case E 017of 2024) KEELC 2382 K
32. He Continues to state that respondent wants to coerce the
applicant into filing documents that he himself is not aware of
; that the Record of appeal was physically delivered on 27 th
April 2026 as instructed by the court and received at the
registry and soft copy uploaded due to circumstances that
have been disclosed; that applicant is unreasonably delaying
the appeal; that the appellants stand to be prejudiced especially
in light of Article 159 of the Constitution; that there is no
proof that services the replying affidavit was out of time and
the same is contrary to Order 50 Rule 8 of the Civil Procedure
Rules, and finally, there is no proof that the court stamp was
back dated.
DETERMINATION
38. I have elaborately considered the application, the reply the
letter submissions, the law and the record of proceedings
39. I now proceed to frame two issues of determination
a) The legal position in respect of filing documents in an Appeal
b) Whether the Application is merited
38. Order 42 of the Civil Procedure Rules 13 (4) provides that
before allowing an appeal to go for hearing, the judge shall
be satisfied that the following documents are on record and
that such of them as are not in the possession of the either party
have been served on that party, that is to say :
(a) the Memorandum of Appeal
(b) the pleadings
(c) the notes of the trial must reach straight mad at the hearing
(d) the transcript of any official shorthand typist or pan Pala ne not or electrical recording made at the hearing
(e) all affidavits’ maps and other documents whatsoever put in evidence before the trial magistrate
(f) the judgement order or decree appealed from ,and , where appropriate the order,(if any )the order giving leave to appeal
Provided that
(i) a translation into English shall be provided of any document in that language
(ii) the judge may dispense with the production of any
document or part of a document which is not relevant
other than those specified in (a) (b) and (f) paragraph
39. It is worth appreciating that the Civil Procedure rules are hand
maiden of justice and compliance with them is necessary in the
administration of justice, and default may occasion injustice to
parties
40.The overriding objective often referred to as the OXYGEN
PRINCIPLE is a foundational legal doctrine that ensures cases
are handled fairly, expeditiously and affordably, and directs
courts to prioritise substantive justice over strict technical
adherence to procedural rules
41. The Principle, founded on section 1A and 1B of Civil
Procedure Act requires courts and legal practitioners to promote
proportionality, prevent delays and ensure equality
42. The said principle is backed by constitutional mandate by
Article 159( 2 ) of the constitution which commands that
justice shall be administered without undue regard to
procedural technicalities
43. In respect of this court the overriding objective, especially on
Appeals are governed by Section 3 of the Environment and
Land Court Act and Constitutional Imperatives which principles
ensure substantiative justice prevails over procedural
technicalities
44. In the case of Thomas Mwaura & Another v Eric Muhati & 20 Others (2012) quoting the findings in the case of Mobil Kitale Service station V Mobil Oil Kenya Limited (HCC) NO 205 of 199,0(unreported ) where the court held :
‘’ It is in the interest of justice that litigation must be
concluded expeditiously and efficiently so that injustice
caused by the delay would be a thing of the past. Justice
would be better served if we dispose of the matter
expeditiously.
45.Section 79B of the Civil Procedure provides that before an
appeal from the subordinate Court to the High Court is heard, a
Judge of the High Court shall peruse it, and if he considers
there is no sufficient ground for interfering with the decree or
part of the decree or order appealed against he may not
notwithstanding section 79C, reject the appeal summary
46. Order 42 Rule 13 (1) and (2) of the Civil Procedure Rules
provides:
(1) on notice to the parties delivered not less than 21 daysafter
the date of service of the Memorandum of Appeal the appeal
and shall cause the Appeal to be listened for the giving
directions by a in chambers
(2) any objection to the Jurisdiction of Appellate court shall be
raised before the Judge before he gives direction under his
rule
(3) the Judge in chambers may give directions regarding the
appeal generally and in particular directions as to the
manner in which evidence and exhibits shall be presented
to the court below shall be put to the Appellate court and as
to the typing of any record or part thereof and any exhibits
or other necessary documents and the payment of costs
of such typing whether in advance or other wise
46.Order 42 rule 11 is synonymous to Section 79G of the Civil
Procedure Act to the effect that an Appellant is given 30 days to
have the matter listed for directions under Section 79 B before a
Judge
47 Order 42 states that upon admission and after service of the
memorandum of appeal the appellant shall cause the appeal to
be listed.
48. In the event the appellant fails to do so the respondent shall be
at liberty to set down the appeal for hearing or apply for its
dismissal
49.In the Kenyan Jurisdiction, the law does not prescribe a
definitive maximum within which an appeal must be completely
heard and determined
50. The law sets timelines for filing and initiating appeals rather
than for their disposal ,when nevertheless when appealing from
the decision of subordinate court ,Section 79G gives thirty days
from the date of the decree, judgement or order
51.Despite the lack of a statutory framework, disposal of appeals
is determined by high volume of pending cases and case
management directions, urging parties to file submissions
within short windows
52. With the launch of the Mahakama popote (court anywhere)
Digital System, which is a transformative tool under STAJ,
flexibility and timely access to justice has enhanced
efficiency, reduced backlogs and minimized delays
LATE FILING OF DOCUMENTS
53. The Supreme Court has emphasized that compliance with its
orders on filing and service of documents is imperative
54. Compliance with court orders goes to the root of the rule of law
as well as the dignity of the court
See Okiya Omtata Okoiti & 3 Others VS The Cabinet
Secretary National Treasury and Planning and other SC
Appl Number E029 of 2023)
54. There are different schools of thought regarding compliance;
Legal Positivists and realists
53. Proponents of strict compliance have held that failure to comply
with the court ordered timelines renders a defence irregular, and
liable to be struck out especially where no application has been
made to regularise the position and no explanation offered ( see
Nicholas Kiptoo Arap Korir Salat v IEBC and seven others
2014 e KLR and Speaker of the Nairobi City County
Assembly & Another Exparte Evans Kidero (2017)KEHC
6101 KLR
54. The proponents of the above school of thought subscribe to the
view that court orders are not issued in vain and parties who
benefit from the court’s discretion are under the corresponding
to strictly comply with the conditions attached to the thereto
57. Realists argue that courts have a discretion to strike out
pleadings but they must appreciate that striking out a suit
draconian and drastic measure which should be accessed with a
lot of caution sparingly and out of necessity this should apply only
where a pleading cannot be salvaged.
58. In the case of Fawaz Yasin Twaha v Timamy Issa Abdalla and
two others 2015 EKLR the Supreme Court held:
‘ ’ 62. in extending time to allow the filing of an appeal out of
time the court essentially breathes life into the notice of
appeal which had elapsed and it is deemed to be still in
force This is what the law contemplates in providing for
application for extension of time to file an appeal out of
time with such extension of time the competence of the
notice of appeal is reinstated.’’
59. In the case of DPP V Chrystantus Barnabas Okemo and five
others Appl 28 of 2019 the Supreme Court having found that
the Appellant having delayed for 521 days in filing the
application before it held:
‘’ While we take great exception to the applicant’s conduct in
the matter, we have considered the public interest nature of
this matter and find that it calls for these court’s invocation
of its inherent power to issue appropriate orders for the end
of justice.
The respondent raised the crucial aspect that the delay in
instituting the appeal, of noose of judicial uncertainty
continues to precariously hungover and is not only unfair,
but it violates their non derogable rights and legitimate
expectation that ‘’justice shall not be delayed ‘’guaranteed by
Article 50 (2) as read by article 159 (2) (b) of the constitution.
We agreed that delay is prejudical the respondents.
However, given the public Interest aspect of the matter that
we have alluded we find that it outweighs the individual rights
of the two respondents We should have sanctioned the
applicant to pay the respondents cost but we find that would amount to expending public funds of a taxpayer by a public body that slept on the job. Each party shall bear its own costs
69. In the case of Kenya Airports Authority vs Otieno Ragot & Company Advocates Petition Number E011 of 2023 t he Supreme court refering to decision of the Independent Electoral & Boundaries Commission v Jane Cheprenger & 2 Others SC Petition number no 5 of 2016 {2018} e KLR where it underscored the importance of court orders and given directions every party has an obligation to honour court directions .The court noted that whereas late filing of submissions is not incurable and that the court has discretion to allow such late filing that applicant had not moved the court appropriately by way of an application for extension of time to file the said documents. And The court posed the question as to whether failure to do so is fatal?
The court then stated thus:
V.This court is granted general powers to make any ancillary
or interlocutory orders by virtue of the provisions of
section 21 of its Act. Similarly, Rule 65 of the court’s
rules empower the court to issue such directions as may
be appropriate. The bottom line in both cases is for parties
to litigation to reasonably access justice
IV. The consideration to bear in mind here is what prejudice
has been suffered by the respondent due to the applicant’s
failure to timeously file its submissions and whether the
respondent can be facilitated to mitigate such prejudice as
may have been suffered. Conversely would the applicant be
able to still argue the appeal without submissions? The
answer to both inquiries we find are in the affirmative. At
the hearing, the applicant can well argue the appeal orally.
The respondent can always be granted leave to file
supplementary submissions in reply to the submissions by
the appellant which was filed out of time all in the interest
of justice and to an expeditious disposal of this litigation.
61. I find the above reasoning of the Supreme Court to be sound
and ideal just as R.W.M Dias in his authoritative book
Jursiprudence puts it that ‘ ’clay is clay before during
and after it has been mounded meaning law is the legal rule
and applicable even before the judge decides it
62. Judges apply precedence and statutes which are already legal
and therefore, law is founded on social needs and pressure.
B. WHETHER THE APPLICATION TO STRIKE OUT IS MERITED
63. The applicant states in her application states that the record of appeal was stamped with a date on 27 th April ,2026 but the electronically generated document was and served on 28 th April ,2026
64. Nevertheless he admits service. He says the stamp was
backdated though he cannot vouch for the same
65. Since this issue of backdating of a stamp is a gray area the
court will endeavour to address the same
66. Back dating also called antedating, is when a document is
signed with a time stamp that has an earlier date than when
the document is actually signed.
67. To establish back dating the following must be done:
-Preserve and collect original and copies
- Secure the original physical document and any electronic
native files
-collect all versions , drafts ,email attachments, scanned copies
,photcopies ,printouts , and related paperwork
. maintain chain of custody and document how each item was
Obtained
- The document must beep presented to a document examiner for comparison ink, pen strokes the examiner has to look for
chronological inconsistencies dates in headers and footers
pagination, letterhead logos form version and version
numbers inspect file
68. To prove that an ink stamp is backdated one has to find
presence of forensic logical or physical evidence that a rubber
stamp impression was placed on a document at a later date that
the date printed the paper Ink comparison approach
70 . According to study carried out by Valerie M. Anginsky, PHD in
his article Inc dating comparative examination of ink on
document using optical and chemical methods journal of An
American Society of Questioned Document examiner INC
Volume 16 ,1 June 2013 he observes that there are four major
approaches used in dating ink in a document which ink ageing
approach measures the ink ageing process that occurs on ink
documents ,ink availability approach analytical method that
analyses the chemical components of ink in a contested
document with the aim of determining whether this ink as well
as other material used in PRO to produce the document paper
inkjet ,printing ink toner, stamped ink etc were commercially
available
71. The writer concludes by stating that the frequency of
occurrence of certain ink morphology deflects observed under
microscopes in writing samples produced by ballpoint pens may
be of considerable value in determining the relative time of the
production of a document or specific entries on a document by
reference to other entries and or documents
72. To answer the questions as to whether the appellant documents
was backdated in the light of forgoing I rely on the following
decisions
73. In the case of Macharia v Macharia & 3 others [2024] KEELC 3703 (KLR) the court observed thus on
‘ ’ The trial court observed that the Appellant, as the Applicant for the said Application did not come to court with clean hands, since the said hands were tainted with backdating of the receiving stamp at the Registry. It is not very clear where the trial court got this informing of backdating the receiving stamp, since stamps are ordinarily affixed by the Registry and not the litigants. Was there an Affidavit sworn by the Registry staff that the Receiving Stamp on the Application was backdated? This allegation goes to the integrity of the happenings at the Court’s Registry, which then should have been blamed on the individuals at the Court Registry and not the Litigant.
82.Without evidence of such backdating of the receiving stamp, this court finds that it was not proper for the trial court to have made such a sweeping statement without backup evidence. There was a signature O.C at the top of the Application. Was the said signature disputed by the Court Registry staff or the In charge of the Civil Registry? Without such evidence, then the holding of the trial court cannot stand or go unchallenged.’’
74. In the case Magezi and Anor v Rupaleria (Civil Application 10 of 2002) 2004 UGSC 33 (19 December 2004) f court referred to the authority of the Supreme Court in Crane Finance Co. Ltd. - vs - Makerere Properties (Supreme Court) Civil Application No. 1 of 2001 (unreported) which raised issues similar to those in the instant where the supreme court stated thus:
” The rule envisages four scenarios in which extension of time for the doing of an act so
authorised or required, may he granted, namely -
(a) before expiration of the limited time;
(b) after expiration of the limited time;
(c) before the act is done;
(d) after the act is done."
The situation in the instant case is a combination of scenario (b) and (d). the appellant applied for, and Kitumba JA, granted extension of time for filing and serving of the record of appeal, long after limited time had expired, and also after the acts of filing and serving the record of appeal had been done. The bone of contention however, is in respect of scenario (d) namely the effect of such extension on the acts which had already been d
[...truncated]
1. The appeal herein arises from the decision of the Senior Resident Magistrate, MBITA in ELC case number E-10 of 2021 made on 21 st September 2022
2. The appeal arises from refusal by the magistrate to allow a notice of motion dated 22 nd June 2022 seeking to set aside the ex-parte judgment entered in favor of the plaintiff
3. Upon hearing the application, the court delivered a ruling on 21 st September 2022 dismissing the said application with costs to the respondent
RECORD PROCEEDING /THE APPEA L
4. Looking from the record, I note that the appeal was admitted on 13 th March ,2023 and the court directed filing the record of appeal within 30 days
5. On 11 th October ,2023 Justice Ongondo upon pursuing the application dated 11 th October 2023 granted the applicant a temporary stay.
6. However, on 5 th December, 2023 the application was marked as compromised and a consent was made forbidding the applicants from interfering with the subject matter until the appeal is heard and determined
7. Midway the parties informed the court that they were exploring ADR.
8. On13 th May,2024 when parties appeared in court the Respondent /Applicant herein informed the court that there was no progress on ADR, and further requested the court to dismiss the appeal for the reason that it had taken two (2)years in court.
9. The Court in its own wisdom gave the last date for directions on
8 th July 2024 on the said dates Mr Otieno Advocate appeared in court and
informed the court that he had filed a notice of change dated
28 th of June 2024 in respect of Homa Bay ELC Appeal number
9 of 2024 and sought consolidation of the two files.
10. In response thereto, the respondent denied being aware of the
notice of change. He confirmed service of the record of appeal
and requested the court to give a try to court annexed
mediation Process.
11. In view of the sentiments made the court directed parties to
appear before the Mediator on 8 th August 2024 for the
purpose of Court Annexed Mediation [CAM] and on the said
date parties appeared before the DR and upon making their respective presentations the Deputy Registrar directed that the mediator proceeds to commence the mediation exercise afresh
12. On 4 th November 2024 a report on the progress of mediation was submitted back to the court. The Judge was informed that the parties had agreed that survey was to be done on the disputed parcel and a report had been uploaded in the courts CTS.
13. However, the respondent had his reservations regarding the
report and in opposition he made it clear to court that he was
not agreeable to the survey Report dated 22 nd August, 2024
14. Due to entrenched differences between the parties hereto which could not be resolved through the said report, the court directed that the appeal be heard by way of written submissions.
15. The court gave timelines for filing and serving their respective submissions
16. On 12 th February 2025 the matter was adjourned to 2 nd April
,2025 and both parties were accorded a further chance of
submitting.
17. On 2 nd April 2025 the matter was once again adjourned to 23 rd
April , 2025 and the court gave a ruling date in respect of an application seeking to regularise the record of Appeal.The court then gave a rider that the Respondent had leave to file a supplementary record of Appeal,if he so wished.
18. Hearing was then adjourned to 14 th October ,2025 and the respondent was given a chance to file fresh submissions.
19. On 4 th October 2025 both parties were given another chance to submit and on 27 th November,2025 the earlier orders were extended the court. The then gave a judgment date for 8 th February,2026
20. However, on the date set for delivery of judgment the court raised a red alert regarding the record of appeal which was incomplete and in the interest of justice gave the appellant 30 days to file a fresh record of appeal
21. On 22 nd April, 2026 the respondent raised an issue about the
record of appeal having left out several pages. He informed the
court that he did have supplementary record of appeal
22. On that basis the court then gave directions for compliance
and stated as follows and which I quote:
‘’ The interest of justice requires that the appeal be heard fast or expeditiously .To take time time to strike out the record of appeal and require another filing of the same will delay the appeal .Thus the appellant is given up to Monday 27 th April, 2026 at the close of business to file and serve the fresh record of appeal. In default this appeal shall be struck out automatically for non-compliance .
Once the record of appeal is filed and served on time then the appellant has 21 days to submit not more than five pages of Times New Roman front 12 and the respondent has 21 days to submit in the format specified .Hearing of appeal on 7 th July 2026.
23. The foregoing chronology of events /proceeding guides us to where we have reached as for now ,and how the application dated 28 th April,2026 came into being
24. On 7 th July 2026 both parties were present and the court was informed of the pending application that a had been filed in addition to submissions .
THE APPLICATION
25. The application by way of a notice of motion is made under
order 79G, IA , IB and 3A of the CPA and order 42 rules
2,11,12 and 13 of the CPR
26. The application seeks to strike out the Memorandum of Appeal dated 21 st October 2022 and dismiss the appeal
27. The application is based on the following grounds which are:
-Judgment was delivered in land case number E 010 of 2021
on 27 th January 2022 and the instant appeal was lodged on 24 th October 2022.
-On 22 nd April 2026 the court ordered the appellant to file
a proper record on of appeal by 27 th April , 2026 ,failure of which the appeal shall stand struck out
-The appellants have failed to file a proper record or any record of appeal
-The respondent stands to be highly prejudiced should the
orders sought not be granted
- The records of appeal dated 25 th February 2026 has 39 more pages missing and they only added 13 Pages which he gave the court on 22 nd April 2026 as his supplementary record
-For the sake of equity and justice he prays that the application be allowed
-That this case is for academic purposes as the Court had given orders for Mbita Lawcourt decree to be effected as seen in paragraph 15 by Honorable Ongondo and whatever
the appellants are doing has been overtaken by events
REPLY BY THE APPELLANTS/RESPONDENTS
28. The respondent filed a replying affidavit and a supplementary affidavit in opposing the application
29. The said affidavit has been sworn by Christine Ngani Ligadho
Advocate and made his response Summarized hereunder
• That the Honorable judge was ready to render a ruling on the appeal and set a judgment date
• The on the said date the Judge indicated he could not render a ruling since the ruling of the trial court was missing
• To finally settle the matter a fresh record of appeal was filed on 27 th April ,2026 . That they replaced the documents in their amended record of Appeal with record that were served by the Applicant
• After service the applicant did serve some documents alleging that there were parts of the records that were missing
• The applicant that the even communicated to Miss Adoyo who inquired whether the addition of documents he had served were all ,to which the applicants are formed documents he served will be okay
• That the applicant had an issue with service he would have raised the same in his response and or further submissions.
• That the Applicant has not clearly pointed out the 52 pages that are missing
• That the applicant is seeking the coercion of the appellants into filing documents that he himself is not even aware of
• That Counsel called the Applicant on 27 th April ,2026 via whatapp to inquire the documents he was referring to but the Applicant said he was on the road and would call back
• Later the applicant retorted by saying he didn’t know where the documents were and that the appellants counsel should look for them where he can
• Counsel subsequently left to attend to Oyugis to attend children’s case E004 of 2026 and his colleague proceeded with finishing compiling of a fresh record
• That on coming back his colleague had bound a single copy which was filed on 27 th April 2026 at HomaBay ELC Registry
• That the registry scanning had begun manually documents process and in the registry staff chipped in the process one of the staff sustained an injury
• upon finishing scanning the said registry staff indicated a soft copy would be forwarded but that was not done until 11 am on 28 th April 2026 when he personally walked to the registry and was informed that the said registry staff had reported
• That Counsel found the document abandoned near the scanner and he had to bear the burden of rearranging scanning and rebinding
• He uploaded a copy after delivering a copy to the registry Both hard and soft copy were filed but on different dates
• That the applicant is unreasonably delaying the appeal
• If the orders sought granted the appellant in the light of Article 159 will be greatly prejudiced
APPLICANTS SUBMISSIONS
30. The applicant filed his submissions on 18/6/2026
In his address he seeks to strike out the relying affidavits of and sworn by Ngani Advocate as both were filed out of time
He states that the last day of service was on 14 th May,2026 at 1.30pm; that on 22 nd April ,2026 the court directed the Appellants to file and serve a fresh record of Appeal ; the orders were made in the presence of the respondents; that the record was not filed by 27 April 2026, that the record of appeal was filed by the respondents on 28 April 2026 at 1:30 PM and served at 3:05 PM,; that that the stamp could be backdated ; that he filed the original case in 2021 when documents were being assessed ; that during 2023 the judiciary introduced a tamper proof system ; that during the period he visited the registry to file a physical copy of documents but he was turned down ; that according to him he says he has reason to believe the record was filed out of time.
31. He relies on the authorities of Ndungu & Another (suing as legal representative of the Estate of Jonah Muriithi Kimotho (-deceased] v Kimathi & Another
[Civil Appeal E036 of 2023] 2022 KEHC 17463 [KLR] where it was held that court orders are not made in vain and must be complied with. Bikeri v Abdille (Civil Appeal number E001 of 2022(2022) KEHC 12089 (KL R) which relates to contempt of court orders and the requirements thereof, and ,lastly Florence Kimoi Kimutai & Another vs Francis Chuma (ELC 385 OF 2023) where the court found that the order had not been controverted .
SUBMISSIONS BY THE APPELLANT / RESPONDENT
32. The Appellants/Respondent filed the submissions filed
submissions through their Counsel on 18 th June ,2026;
Counsel states that under order 9 rule 3 of Civil Procedure
rules an affidavit shall be confined to such facts as the
deponent is able to prove of his own knowledge.
This is supported by the authority of Regina Waithira Mwangi Gitau v Boniface Nthenge 2015 eKLR ; Counsel says the issues filed in the affidavit of on 14 th May 26 is within his knowledge ;As to striking out the replying affidavit counsel states that under Order 19 Rule 7 of the Civil Procedure Rules does not bar a court from receiving an affidavit notwithstanding the defect and this is supported by the finding in the case of Lakeview Development Limited versus Belgo Holding Limited and other environment and land case E064 of 2020 [ 2023].
He asks the court to overlook the defects of the affidavit as the intention is clear ;as to whether the memorandum should be struck out Counsel states that no sufficient ground for striking out has been raised that the Honourable Judge was ready to render a ruling on appeal and had set a date for judgement ,however on the material day the court discovered that the ruling was missing ; that the applicant had unprocedurally taken the discretion of the court to declare which record is proper and which is not proper ;that the instant appeal has reached the stage of issuing final judgement ,that the applicant has filed a fresh record of appeal that the applicant had communicated thorough M/s Adoyo regarding additional documents ;that the record is properly filed in accordance with 42 Rule 13 of the Civil Procedure Rules and affirmed in decision in the case of Otieno versus Odhiambo and three others (Land case E 017of 2024) KEELC 2382 K
32. He Continues to state that respondent wants to coerce the
applicant into filing documents that he himself is not aware of
; that the Record of appeal was physically delivered on 27 th
April 2026 as instructed by the court and received at the
registry and soft copy uploaded due to circumstances that
have been disclosed; that applicant is unreasonably delaying
the appeal; that the appellants stand to be prejudiced especially
in light of Article 159 of the Constitution; that there is no
proof that services the replying affidavit was out of time and
the same is contrary to Order 50 Rule 8 of the Civil Procedure
Rules, and finally, there is no proof that the court stamp was
back dated.
DETERMINATION
38. I have elaborately considered the application, the reply the
letter submissions, the law and the record of proceedings
39. I now proceed to frame two issues of determination
a) The legal position in respect of filing documents in an Appeal
b) Whether the Application is merited
38. Order 42 of the Civil Procedure Rules 13 (4) provides that
before allowing an appeal to go for hearing, the judge shall
be satisfied that the following documents are on record and
that such of them as are not in the possession of the either party
have been served on that party, that is to say :
(a) the Memorandum of Appeal
(b) the pleadings
(c) the notes of the trial must reach straight mad at the hearing
(d) the transcript of any official shorthand typist or pan Pala ne not or electrical recording made at the hearing
(e) all affidavits’ maps and other documents whatsoever put in evidence before the trial magistrate
(f) the judgement order or decree appealed from ,and , where appropriate the order,(if any )the order giving leave to appeal
Provided that
(i) a translation into English shall be provided of any document in that language
(ii) the judge may dispense with the production of any
document or part of a document which is not relevant
other than those specified in (a) (b) and (f) paragraph
39. It is worth appreciating that the Civil Procedure rules are hand
maiden of justice and compliance with them is necessary in the
administration of justice, and default may occasion injustice to
parties
40.The overriding objective often referred to as the OXYGEN
PRINCIPLE is a foundational legal doctrine that ensures cases
are handled fairly, expeditiously and affordably, and directs
courts to prioritise substantive justice over strict technical
adherence to procedural rules
41. The Principle, founded on section 1A and 1B of Civil
Procedure Act requires courts and legal practitioners to promote
proportionality, prevent delays and ensure equality
42. The said principle is backed by constitutional mandate by
Article 159( 2 ) of the constitution which commands that
justice shall be administered without undue regard to
procedural technicalities
43. In respect of this court the overriding objective, especially on
Appeals are governed by Section 3 of the Environment and
Land Court Act and Constitutional Imperatives which principles
ensure substantiative justice prevails over procedural
technicalities
44. In the case of Thomas Mwaura & Another v Eric Muhati & 20 Others (2012) quoting the findings in the case of Mobil Kitale Service station V Mobil Oil Kenya Limited (HCC) NO 205 of 199,0(unreported ) where the court held :
‘’ It is in the interest of justice that litigation must be
concluded expeditiously and efficiently so that injustice
caused by the delay would be a thing of the past. Justice
would be better served if we dispose of the matter
expeditiously.
45.Section 79B of the Civil Procedure provides that before an
appeal from the subordinate Court to the High Court is heard, a
Judge of the High Court shall peruse it, and if he considers
there is no sufficient ground for interfering with the decree or
part of the decree or order appealed against he may not
notwithstanding section 79C, reject the appeal summary
46. Order 42 Rule 13 (1) and (2) of the Civil Procedure Rules
provides:
(1) on notice to the parties delivered not less than 21 daysafter
the date of service of the Memorandum of Appeal the appeal
and shall cause the Appeal to be listened for the giving
directions by a in chambers
(2) any objection to the Jurisdiction of Appellate court shall be
raised before the Judge before he gives direction under his
rule
(3) the Judge in chambers may give directions regarding the
appeal generally and in particular directions as to the
manner in which evidence and exhibits shall be presented
to the court below shall be put to the Appellate court and as
to the typing of any record or part thereof and any exhibits
or other necessary documents and the payment of costs
of such typing whether in advance or other wise
46.Order 42 rule 11 is synonymous to Section 79G of the Civil
Procedure Act to the effect that an Appellant is given 30 days to
have the matter listed for directions under Section 79 B before a
Judge
47 Order 42 states that upon admission and after service of the
memorandum of appeal the appellant shall cause the appeal to
be listed.
48. In the event the appellant fails to do so the respondent shall be
at liberty to set down the appeal for hearing or apply for its
dismissal
49.In the Kenyan Jurisdiction, the law does not prescribe a
definitive maximum within which an appeal must be completely
heard and determined
50. The law sets timelines for filing and initiating appeals rather
than for their disposal ,when nevertheless when appealing from
the decision of subordinate court ,Section 79G gives thirty days
from the date of the decree, judgement or order
51.Despite the lack of a statutory framework, disposal of appeals
is determined by high volume of pending cases and case
management directions, urging parties to file submissions
within short windows
52. With the launch of the Mahakama popote (court anywhere)
Digital System, which is a transformative tool under STAJ,
flexibility and timely access to justice has enhanced
efficiency, reduced backlogs and minimized delays
LATE FILING OF DOCUMENTS
53. The Supreme Court has emphasized that compliance with its
orders on filing and service of documents is imperative
54. Compliance with court orders goes to the root of the rule of law
as well as the dignity of the court
See Okiya Omtata Okoiti & 3 Others VS The Cabinet
Secretary National Treasury and Planning and other SC
Appl Number E029 of 2023)
54. There are different schools of thought regarding compliance;
Legal Positivists and realists
53. Proponents of strict compliance have held that failure to comply
with the court ordered timelines renders a defence irregular, and
liable to be struck out especially where no application has been
made to regularise the position and no explanation offered ( see
Nicholas Kiptoo Arap Korir Salat v IEBC and seven others
2014 e KLR and Speaker of the Nairobi City County
Assembly & Another Exparte Evans Kidero (2017)KEHC
6101 KLR
54. The proponents of the above school of thought subscribe to the
view that court orders are not issued in vain and parties who
benefit from the court’s discretion are under the corresponding
to strictly comply with the conditions attached to the thereto
57. Realists argue that courts have a discretion to strike out
pleadings but they must appreciate that striking out a suit
draconian and drastic measure which should be accessed with a
lot of caution sparingly and out of necessity this should apply only
where a pleading cannot be salvaged.
58. In the case of Fawaz Yasin Twaha v Timamy Issa Abdalla and
two others 2015 EKLR the Supreme Court held:
‘ ’ 62. in extending time to allow the filing of an appeal out of
time the court essentially breathes life into the notice of
appeal which had elapsed and it is deemed to be still in
force This is what the law contemplates in providing for
application for extension of time to file an appeal out of
time with such extension of time the competence of the
notice of appeal is reinstated.’’
59. In the case of DPP V Chrystantus Barnabas Okemo and five
others Appl 28 of 2019 the Supreme Court having found that
the Appellant having delayed for 521 days in filing the
application before it held:
‘’ While we take great exception to the applicant’s conduct in
the matter, we have considered the public interest nature of
this matter and find that it calls for these court’s invocation
of its inherent power to issue appropriate orders for the end
of justice.
The respondent raised the crucial aspect that the delay in
instituting the appeal, of noose of judicial uncertainty
continues to precariously hungover and is not only unfair,
but it violates their non derogable rights and legitimate
expectation that ‘’justice shall not be delayed ‘’guaranteed by
Article 50 (2) as read by article 159 (2) (b) of the constitution.
We agreed that delay is prejudical the respondents.
However, given the public Interest aspect of the matter that
we have alluded we find that it outweighs the individual rights
of the two respondents We should have sanctioned the
applicant to pay the respondents cost but we find that would amount to expending public funds of a taxpayer by a public body that slept on the job. Each party shall bear its own costs
69. In the case of Kenya Airports Authority vs Otieno Ragot & Company Advocates Petition Number E011 of 2023 t he Supreme court refering to decision of the Independent Electoral & Boundaries Commission v Jane Cheprenger & 2 Others SC Petition number no 5 of 2016 {2018} e KLR where it underscored the importance of court orders and given directions every party has an obligation to honour court directions .The court noted that whereas late filing of submissions is not incurable and that the court has discretion to allow such late filing that applicant had not moved the court appropriately by way of an application for extension of time to file the said documents. And The court posed the question as to whether failure to do so is fatal?
The court then stated thus:
V.This court is granted general powers to make any ancillary
or interlocutory orders by virtue of the provisions of
section 21 of its Act. Similarly, Rule 65 of the court’s
rules empower the court to issue such directions as may
be appropriate. The bottom line in both cases is for parties
to litigation to reasonably access justice
IV. The consideration to bear in mind here is what prejudice
has been suffered by the respondent due to the applicant’s
failure to timeously file its submissions and whether the
respondent can be facilitated to mitigate such prejudice as
may have been suffered. Conversely would the applicant be
able to still argue the appeal without submissions? The
answer to both inquiries we find are in the affirmative. At
the hearing, the applicant can well argue the appeal orally.
The respondent can always be granted leave to file
supplementary submissions in reply to the submissions by
the appellant which was filed out of time all in the interest
of justice and to an expeditious disposal of this litigation.
61. I find the above reasoning of the Supreme Court to be sound
and ideal just as R.W.M Dias in his authoritative book
Jursiprudence puts it that ‘ ’clay is clay before during
and after it has been mounded meaning law is the legal rule
and applicable even before the judge decides it
62. Judges apply precedence and statutes which are already legal
and therefore, law is founded on social needs and pressure.
B. WHETHER THE APPLICATION TO STRIKE OUT IS MERITED
63. The applicant states in her application states that the record of appeal was stamped with a date on 27 th April ,2026 but the electronically generated document was and served on 28 th April ,2026
64. Nevertheless he admits service. He says the stamp was
backdated though he cannot vouch for the same
65. Since this issue of backdating of a stamp is a gray area the
court will endeavour to address the same
66. Back dating also called antedating, is when a document is
signed with a time stamp that has an earlier date than when
the document is actually signed.
67. To establish back dating the following must be done:
-Preserve and collect original and copies
- Secure the original physical document and any electronic
native files
-collect all versions , drafts ,email attachments, scanned copies
,photcopies ,printouts , and related paperwork
. maintain chain of custody and document how each item was
Obtained
- The document must beep presented to a document examiner for comparison ink, pen strokes the examiner has to look for
chronological inconsistencies dates in headers and footers
pagination, letterhead logos form version and version
numbers inspect file
68. To prove that an ink stamp is backdated one has to find
presence of forensic logical or physical evidence that a rubber
stamp impression was placed on a document at a later date that
the date printed the paper Ink comparison approach
70 . According to study carried out by Valerie M. Anginsky, PHD in
his article Inc dating comparative examination of ink on
document using optical and chemical methods journal of An
American Society of Questioned Document examiner INC
Volume 16 ,1 June 2013 he observes that there are four major
approaches used in dating ink in a document which ink ageing
approach measures the ink ageing process that occurs on ink
documents ,ink availability approach analytical method that
analyses the chemical components of ink in a contested
document with the aim of determining whether this ink as well
as other material used in PRO to produce the document paper
inkjet ,printing ink toner, stamped ink etc were commercially
available
71. The writer concludes by stating that the frequency of
occurrence of certain ink morphology deflects observed under
microscopes in writing samples produced by ballpoint pens may
be of considerable value in determining the relative time of the
production of a document or specific entries on a document by
reference to other entries and or documents
72. To answer the questions as to whether the appellant documents
was backdated in the light of forgoing I rely on the following
decisions
73. In the case of Macharia v Macharia & 3 others [2024] KEELC 3703 (KLR) the court observed thus on
‘ ’ The trial court observed that the Appellant, as the Applicant for the said Application did not come to court with clean hands, since the said hands were tainted with backdating of the receiving stamp at the Registry. It is not very clear where the trial court got this informing of backdating the receiving stamp, since stamps are ordinarily affixed by the Registry and not the litigants. Was there an Affidavit sworn by the Registry staff that the Receiving Stamp on the Application was backdated? This allegation goes to the integrity of the happenings at the Court’s Registry, which then should have been blamed on the individuals at the Court Registry and not the Litigant.
82.Without evidence of such backdating of the receiving stamp, this court finds that it was not proper for the trial court to have made such a sweeping statement without backup evidence. There was a signature O.C at the top of the Application. Was the said signature disputed by the Court Registry staff or the In charge of the Civil Registry? Without such evidence, then the holding of the trial court cannot stand or go unchallenged.’’
74. In the case Magezi and Anor v Rupaleria (Civil Application 10 of 2002) 2004 UGSC 33 (19 December 2004) f court referred to the authority of the Supreme Court in Crane Finance Co. Ltd. - vs - Makerere Properties (Supreme Court) Civil Application No. 1 of 2001 (unreported) which raised issues similar to those in the instant where the supreme court stated thus:
” The rule envisages four scenarios in which extension of time for the doing of an act so
authorised or required, may he granted, namely -
(a) before expiration of the limited time;
(b) after expiration of the limited time;
(c) before the act is done;
(d) after the act is done."
The situation in the instant case is a combination of scenario (b) and (d). the appellant applied for, and Kitumba JA, granted extension of time for filing and serving of the record of appeal, long after limited time had expired, and also after the acts of filing and serving the record of appeal had been done. The bone of contention however, is in respect of scenario (d) namely the effect of such extension on the acts which had already been d
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