1. The applicant filed the application dated 14.5.24 seeking :
a. That the appeal herein be dismissed with costs for non- compliance with the directions dated 25.1.24.
b. That the appeal be dismissed for delaying the hearing and determination of the appeal by failing to file a record of appeal .
c. costs be provided for .
2. The application is based on the grounds that on 25.1.24 the appellant was directed to file a record of appeal within 30 days from that date , on 14.3.24 the Deputy registrar noted that the orders dated 21.124 had not been complied with and there for the appeal is for dismissal .
3. The application is supported by the annexed affidavit of Beatrice Bututu Nyangau dated 20.3.25 in which she decried that the applicant had failed to comply with the orders dated 14.5.24 and hence delayed the appeal . Also that the appellant is applying delaying tactics to deny her interest which is of the fruit of her judgment . She asked this court to dismiss the appeal .
4. The application was opposed by the Replying affidavit of Anne Rono Counsel for respondent dated 5.6.25 in which she deponed that the Record od appeal was filed and served on 20.10.22and was stamped by the receiving stamp of the applicants counsel . ( She annexed a copy of the record of appeal ‘’AC1’’ ) She sought for a chance to prosecute the appeal and that deponed that her client will be prejudiced if the appeal is dismissed
6. The Applicant filed a supplementary affidavit dated 6.6.24 and said the contents of the replying affidavit were false as no record of appeal was served upon them and that the record of appeal served was for HCA no. E031 of 2020 and not the instant appeal and this is supported by the fact that the record of appeal is altered .
Analysis and Determination
7. I have considered the application the reply and the able submissions by both counsel herein .
The issues arising for determination are :
a. whether the applicant failed to comply with the orders dated 25.12.24 .
b. whether the applicant delayed the hearing of the appeal
c. whether the appeal ought to be dismissed for non- compliance with court orders
8. On whether the appellant failed to comply with orders to file a record of appeal herein within the timelines set by the court vide it’s orders dated 25.1.24, it is true that the orders were granted on 25.1.24 and there was no compliance with the same . The respondent says he complied with the orders by filling and serving the record of appeal on 28.10.22 As per annexture ‘’AC1’’ . this is disputed by the applicant who said that what was served was the record of appeal in Kisii Civil Appeal no. E031 of 2020 and that the annexed extract of record of appeal is even altered to read E043 of 2020. I have seen the said ‘’AC1’’. It is clear that is altered to read E053 of 2022 . I have also seen a record of appeal filed herein on 18.12.24 . This supports the applicant’s contention that the record of appeal was not filed within 30 days from 25.1.24 as ordered but 10 months later. Also that the record of appeal ‘’AC1’’was for Civil Appeal no. E043 of 2020 but not this case
9. On whether the applicant delayed the hearing of this appeal . The record od appeal was filed 10 months after the orders of the court dated 25.1.24 and about 2 years after the filing of the memorandum of appeal . Expeditious disposal of cases in now enshrined in Article 159 (2)of the Constitution. Justice delayed is justice denied and litigation must come to an end as rightly submitted by the applicant. It is clear that the hearing of the appeal has delayed beyond the 365 days period set in the performance measurement understanding .
10. On whether the appeal should be dismissed . It is clear that appellant failed to comply with court orders of 25.1.24 among other orders for compliance with filing record of appeal .However it has also emerged that the respondent filed two appeals the instant one and Kisii Civil appeal no. E031 of 2020 and that the lower court file has always been in the said other appeal file. This could be the cause of the confusion herein . In the case of Sangram Singh v. Election Tribunal, Koteh, AIR 1955 SC 664, at 71. The supreme court of India held that -
“[T]here must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”
11. Since the respondent has already filed the Record of appeal albeit late and submissions dated 19.12.24 on the appeal and the right to be heard is fundamental , considering the circumstances herein, I am inclined to grant the respondent a chance to prosecute the appeal . I thus decline to dismiss the appeal as prayed in the application dated 14.5.25. I However grant the applicant costs of the application in the sum of Ksh. 20,000/= .
T.A ODERA
JUDGE
28.7.25
DELIVERED VIRTUALLY VIA TERAMA PLATFORM ON THIS 28TH Day of July 2025 IN THE PRESENCE OF –
N/A For applicant
N/A Petitioner
CA KIPCHIRCHIR
Ct : I note from the record of appeal that the proceedings of the lower court are not complete and the proceedings are not arranged in order of dates . I direct that a proper supplementary record of appeal be filed and served within 14 days from today. Respondent to file and serve submissions on the appeal within 21 days from today
Mention on 25.9.25 .
a. That the appeal herein be dismissed with costs for non- compliance with the directions dated 25.1.24.
b. That the appeal be dismissed for delaying the hearing and determination of the appeal by failing to file a record of appeal .
c. costs be provided for .
2. The application is based on the grounds that on 25.1.24 the appellant was directed to file a record of appeal within 30 days from that date , on 14.3.24 the Deputy registrar noted that the orders dated 21.124 had not been complied with and there for the appeal is for dismissal .
3. The application is supported by the annexed affidavit of Beatrice Bututu Nyangau dated 20.3.25 in which she decried that the applicant had failed to comply with the orders dated 14.5.24 and hence delayed the appeal . Also that the appellant is applying delaying tactics to deny her interest which is of the fruit of her judgment . She asked this court to dismiss the appeal .
4. The application was opposed by the Replying affidavit of Anne Rono Counsel for respondent dated 5.6.25 in which she deponed that the Record od appeal was filed and served on 20.10.22and was stamped by the receiving stamp of the applicants counsel . ( She annexed a copy of the record of appeal ‘’AC1’’ ) She sought for a chance to prosecute the appeal and that deponed that her client will be prejudiced if the appeal is dismissed
6. The Applicant filed a supplementary affidavit dated 6.6.24 and said the contents of the replying affidavit were false as no record of appeal was served upon them and that the record of appeal served was for HCA no. E031 of 2020 and not the instant appeal and this is supported by the fact that the record of appeal is altered .
Analysis and Determination
7. I have considered the application the reply and the able submissions by both counsel herein .
The issues arising for determination are :
a. whether the applicant failed to comply with the orders dated 25.12.24 .
b. whether the applicant delayed the hearing of the appeal
c. whether the appeal ought to be dismissed for non- compliance with court orders
8. On whether the appellant failed to comply with orders to file a record of appeal herein within the timelines set by the court vide it’s orders dated 25.1.24, it is true that the orders were granted on 25.1.24 and there was no compliance with the same . The respondent says he complied with the orders by filling and serving the record of appeal on 28.10.22 As per annexture ‘’AC1’’ . this is disputed by the applicant who said that what was served was the record of appeal in Kisii Civil Appeal no. E031 of 2020 and that the annexed extract of record of appeal is even altered to read E043 of 2020. I have seen the said ‘’AC1’’. It is clear that is altered to read E053 of 2022 . I have also seen a record of appeal filed herein on 18.12.24 . This supports the applicant’s contention that the record of appeal was not filed within 30 days from 25.1.24 as ordered but 10 months later. Also that the record of appeal ‘’AC1’’was for Civil Appeal no. E043 of 2020 but not this case
9. On whether the applicant delayed the hearing of this appeal . The record od appeal was filed 10 months after the orders of the court dated 25.1.24 and about 2 years after the filing of the memorandum of appeal . Expeditious disposal of cases in now enshrined in Article 159 (2)of the Constitution. Justice delayed is justice denied and litigation must come to an end as rightly submitted by the applicant. It is clear that the hearing of the appeal has delayed beyond the 365 days period set in the performance measurement understanding .
10. On whether the appeal should be dismissed . It is clear that appellant failed to comply with court orders of 25.1.24 among other orders for compliance with filing record of appeal .However it has also emerged that the respondent filed two appeals the instant one and Kisii Civil appeal no. E031 of 2020 and that the lower court file has always been in the said other appeal file. This could be the cause of the confusion herein . In the case of Sangram Singh v. Election Tribunal, Koteh, AIR 1955 SC 664, at 71. The supreme court of India held that -
“[T]here must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”
11. Since the respondent has already filed the Record of appeal albeit late and submissions dated 19.12.24 on the appeal and the right to be heard is fundamental , considering the circumstances herein, I am inclined to grant the respondent a chance to prosecute the appeal . I thus decline to dismiss the appeal as prayed in the application dated 14.5.25. I However grant the applicant costs of the application in the sum of Ksh. 20,000/= .
T.A ODERA
JUDGE
28.7.25
DELIVERED VIRTUALLY VIA TERAMA PLATFORM ON THIS 28TH Day of July 2025 IN THE PRESENCE OF –
N/A For applicant
N/A Petitioner
CA KIPCHIRCHIR
Ct : I note from the record of appeal that the proceedings of the lower court are not complete and the proceedings are not arranged in order of dates . I direct that a proper supplementary record of appeal be filed and served within 14 days from today. Respondent to file and serve submissions on the appeal within 21 days from today
Mention on 25.9.25 .