Eddy Kuria & 18 others v Harrison Njeri Karanja
The bottom line
#Kenya's Court of Appeal allowed a late strike-out application, ruling that a short delay caused by a lawyer's mistake should not block a case being heard on its merits.
What this practically means
#Executive summary
#Key legal issues
#Whether a litigant may seek leave to file a strike-out application under Rule 86 after the expiry of the 30-day period
Yes. Where the delay is short and attributable to counsel, and the application is unopposed and no prejudice is shown, the Court will extend time under Rule 4.
The Court held that Rule 4 empowers it to extend time for doing any act under the Rules, so the settled Rule 4 extension principles apply with equal force to an application to file a Rule 86 strike-out application late. A delay of one week placed on the advocate's doorstep is not inordinate. Counsel's mistakes, however regrettable, are pardonable where the interests of justice dictate rectification. Since the respondent did not oppose the application, no prejudice was alleged and justice favours adjudication on the merits.
Whether mistakes of counsel justify excusing delay in filing
A mistake by counsel is still a mistake and may be rectified in the interests of justice, unless it amounts to total inaction disguised as a mistake.
Relying on Murai v Wainaina (No 4) as cited in Shital Bimal Shah v Akiba Bank, the Court reiterated that mistakes of counsel come in all shapes and sizes and that the door of justice is not closed because a mistake was made by an experienced person, though total inaction by counsel disguised as a mistake has been rejected. A one-week delay occasioned by the advocate was therefore excusable.
Legal principles established
#- The principles for extension of time under Rule 4 apply equally to leave to file a strike-out application under Rule 86 out of time, and the Court's discretion, though unfettered, must be exercised on reasons: length of delay, reasons for delay, whether the intended proceedings are frivolous, and prejudice to the respondent.
- Where there is no opposition to an extension application and no prejudice is alleged, the Court should prefer that matters be decided on the merits rather than on procedural missteps.
Court orders
#- 1.Time extended to the applicants to apply for the striking out of the Notice of Appeal dated 26th July 2024
- 2.The application to strike out to be filed and served within 14 days from the date of the ruling
- 3.No order as to the costs of the application
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eddy Kuria & 18 others v Harrison Njeri Karanja", Case Analysis (2025). Notice of Motion dated 14th October 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/860/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.