Okello v Ong'ondo & 6 others (Environment and Land Appeal E010 of 2022) [2026] KEELC 1562 (KLR)

2. The Application was based on the grounds on the face of it and supported by the Afidavit of Phillip Owili Okello, the Appellant himself on 15th November 2024. The grounds of the application were that after filing the Record of Appeal the Appellant discovered that there were some pages of the certified copies of proceedings and judgement that were omitted. This Court granted twenty-one (21) days to him to regularize the record. It took more than the twenty-one days for him to trace the Court file, obtain the complete and certified copies, compile a Supplementary Record, file and serve it. The delay was not intentional but occasioned by the fact that the request for copies nowadays are handled online and not physically as before. 3. His deposition reiterated the contents of the grounds in support of the application save that he added some more facts. The court need not repeat the similar content. However, regarding the additional facts, the applicant deponed that he was dissatisfied with the judgement of the honourable court in Oyugis Law Courts and filed the instant Appeal. Directions were taken that the Appeal be heard by way of written submissions. He prepared, filed and served my submissions on the Respondents. When the Appeal came up for mention to confirm compliance and the taking of a date for ruling the Respondents raised an issue that some pages of certified copies of proceedings and judgement were missing from the Record of Appeal. The Appellant prayed for time to peruse through the Record and regularize the same. It was upon that that he discovered that either during the scanning or photocopying of the proceedings and judgement, only the front page was captured and although the originals were printed back to back. He applied online for the copies from the Oyugis Registry but later learnt that the trial file had been moved to Homa Bay. By the time he traced the file, the time given to regularize the record had lapsed. 4. He, nevertheless, prepared the Supplementary Record of Appeal, filed and served it. Then the Respondents objected to the same hence necessitating this application. 5. He deposed that the delay was not deliberated and/or intentional. He urged the court to excuse and pardon him, in the interest of justice. 6. The Respondents opposed the application through the Replying Afidavit sworn by Ouma Maurice Otieno, an Advocate of the High Court of Kenya, on 30th May 2025. He deposed that he was seized of personal conduct of the suit herein. Further, that he was authorized by the 2nd and 5th Respondents to swear the Afidavit. 7. He stated that the application was devoid of merit and was an abuse of the due process of the Court. He added that the appellant had not raised any valid grounds for the grant of the orders sought. When the matter came up before court for compliance on 23rd July 2024, the Appellant prayed for 21 days to file and serve a supplementary record of appeal. About four (4) months later, on the 23rd October 2024, he informed the court that he had filed the supplementary record but was yet to serve it. It was then that the court asked parties to file the relevant Application, hence the instant application. 8. The Applicant prepared the Application but did not serve it up to 29th day of May 2025. He annexed marked "OMO 1" an email bespeaking service. He added that the delay in service was inordinate and not explained. The Appellant’s conduct was a clear indication that he had no intentions whatsoever of prosecuting the appeal expeditiously. The appeal was brought to propagate mischief and delaying the court process. 9. He added that even the Supplementary Record of Appeal still had some missing pages of certified copies of proceedings and the Judgment. The Appellant was accorded more than enough time to put his house in order, but failed to do. The Applicant had not demonstrated to the satisfaction of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1562/eng@2026-02-11 2

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court how the delay was unintentional. The assertion that it took him more than 21 days to trace the court file was hearsay and proven by any evidence. 10. He added the provisions cited did not support the grant of the orders sought. He deposed that extension of time is not a right but discretion which must be exercised judicially. Further, the "Oxygen Principles" laid out in Sections 1A and 1B of the Civil Procedure Act together with Article 159 of the Constitution of Kenya, provide on the overriding objective of the Act and the Rules for facilitating the just, expeditious, proportionate and afiordable resolution of cases. the Appellant had not paid attention to them. 11. He deponed that the Application was not brought in a timely manner but with unreasonable delay and no suficient grounds to support it. 12. The 4th and 6th Respondents filed a Replying Afidavit sworn by the 4th Respondent, Mathew Okoth Acholah on 30th June 2025. He deposed that he was authorized by the 6th Respondent to swear the afidavit on her behalf too. He annexed as "MOA 1" is a copy of the Authority. He added that the application was brought in bad faith because there was no one condemned unheard. It was an abuse of the court process and devoid of merit. The Applicant came to Court with unclean hands and the allegations were false. The applicant has not raised valid grounds for the grant of the orders sought and the application was a waste of court's time. The applicant did not attach any supporting document regarding the allegation (sic). The Appellant had no intention whatsoever of prosecuting the appeal expeditiously but was delaying the whole court process. The applicant was meant to punishing the respondents with several applications yet litigation must come to an end. 13. He deposed to the merits of the appeal by adding that the trial Magistrate does not erred because the judgment he delivered was clear. The application was fatally defective and did hold water. It was baseless, scandalous, frivolous and abuse of court process. They prayed that the application be dismissed with costs. 14. The application was canvassed by way of written submissions. Applicant's Submissions 15. The appellant began his submissions by giving the summary of the application. He then raised some issues for determination. On whether the application should be allowed, he argued that he had explained that compliance within 21 days was not possible because the process of tracing the trial Court file from Oyugis Registry to Homa Bay. 16. He argued that the delay was caused by the discovery that the file had been dispatched from Oyugis registry to Homa Bay High Court registry. The delay was not occasioned by him and not deliberate and/or intended to delay or derail justice. He attributed the need to file a Supplementary Record of Appeal due to human error. He urged that it was in the interest of all the parties that a complete and clear record of appeal be filed for just determination of the appeal. He added that the Respondents too could file supplementary record in case they felt that there were documents not in possession of the Appellant but which would assist the Court. 17. He urged that the Supplementary /record of Appeal be not struck out, and no prejudice would be sufiered by the Respondents by the court allowing the application and admitting the supplementary record of appeal. He concluded that in other courts the emerging practice was that the Court dispenses with the use of typed and certified proceedings by asking the lower court to be availed before it. The lower Court file is sent to the superior Court and Parties are asked to file a record with documents in their possessions together with submissions. He urged, under Article 159 and Sections 3A & 3B of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1562/eng@2026-02-11 3

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Civil Procedure Rules, that the Court considers substantive justice rather than procedural lapses and allow the application. 18. The 7th Respondent filed his submissions dated this 7th day of October 2025 in support of the application. He argued that no prejudice would be occasioned by the late filing of the Supplementary Record of Appeal. 19. He argued further that the Applicant had explained the reasons necessitating the filing of the Supplementary Record of Appeal. He added that since the appeal process was already underway, permitting the filing of a supplementary record would serve to facilitate the complete adjudication of the issues in dispute without undermining the rights of any party. He relied on Article 159(2)(d) of the Constitution of Kenya 2010 which provides for justice to be administered without undue regard to procedural technicalities. 20. In conclusion, he submitted that the Applicant had provided suficient justification for the late filing of the Supplementary Record of Appeal; he provided suficient justification for the late filing of the said Supplementary Record. He prayed that the application be allowed. 21. By their submissions dated 30th October 2025 the 4th and 6th Respondents urged the court to dismiss the Appellant's Application. On whether the application should be allowed they argued that it did not meet the threshold since it had no suficient grounds to support it. Further, that it was defective and bad in law, and a waste of Court's time they relied on Article 159 of the Constitution and Section 3A & 3B of the Civil Procedure Rules (sic). They concluded that the application was fatally/ incurably defective, bad in law, incompetent and utterly misconceived. 22. The 2nd and 5th Respondents filed their submissions dated the 4th day of November 2025. They argued that the application was devoid of merit, brought with inordinate and unexplained delay and was a clear abuse of the due process of the court. Further, the Appellant has not met the legal threshold for the grant of discretionary relief sought. They argued that the provisions of the law relied on were not a shield for indolent litigants as the delay herein was neither excusable nor explained to the satisfaction of the court. 23. Further, the chronology of events leading to the application clearly demonstrated a pattern of negligence and indifierence on the part of the Appellant. They then gave the chronology, which this Court also shall give below, but based on the record. They argued that the delay of over six months in serving the application was inordinate and inexcusable. That the Appellant did not supported by any documentary evidence or afidavit from the registry the allegation that they were unable to trace the court file. 24. The Appellant failed to demonstrate diligence, good faith, or suficient cause to warrant the court's indulgence. The repeated non-compliance with court directions, the inordinate delay in filing and serving the necessary documents, and the incomplete nature of the purported Supplementary Record of Appeal all pointed to an attempt to delay and frustrate the fair determination of this matter. 25. Thus, on whether the Appellant had demonstrated suficient cause to warrant the Court's discretion to enlarge time for filing and serving the Supplementary Record of Appeal, they argued that it is settled law that an extension of time is a discretionary remedy and not a right and the applicant bears the onus of establishing good and suficient cause which had not been done herein. The length of delay too was a factor to consider; the reasons profiered, the applicant's conduct, the prospects of success of the intended appeal, and the prejudice likely to be occasioned to the Respondent if time is extended. They contended that these factors were absent in the instant application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1562/eng@2026-02-11 4

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26. On the prospects of success and prejudice it was their submission that where the supplementary record itself is demonstrably defective and the Respondent will be prejudiced by renewed or prolonged litigation, these considerations militate strongly against extension. They relied on the Supreme Court of Kenya decision of Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others (2015) eKLR and the case of Rupa Savings & Credit Cooperative Society Violet Shidogo (2022) eKLR. 27. Further, they relied on the Court of Appeal case of Itute Ingu v Isumael Mwakavi Mwenda (1994) eKLR on the need to look at the nature or quality of the mistake. Also, they placed reliance on Ibrahim Mungara Mwangi v Francis Ndegwan Mwangi [2014] eKLR on the principle that delay defeats equity; and Fran Investment Ltd v G4S Security Services Ltd [2015] eKLR where he stated. They asked the court to dismiss the application with costs. Issue, Analysis and Determination 28. This court has carefully considered the application, the law and the submissions by the respect parties. It is of the view the only two issues that commend themselves for determination are whether the application is merited and who to costs thereof. 29. Before embarking on the merits of the application, this court wishes to comment on the practice of counsel for parties stepping into the arena of litigants’ disputes, whether in defense or prosecution of their issues, by way adducing evidence through depositions in afidavits as was in this case on behalf of the 2nd and 5th Respondents. It is noteworthy that the two parties did not file their response in person. Rather, their advocate, one Maurice Otieno, swore the afidavit in opposition to the application. He stated that he was duly authorized to do so. First, the use of the general or blanket phrase that somebody is authorized to swear an afidavit on behalf of another or plead in that behalf is a practice which should be abhorred, particularly, when there is no such authorization in writing. The Civil Procedure is clear about how authorization for one to plead on another’s behalf should be: it should be in writing, duly signed by the person so authorizing. In the instant case the advocate jumped into the fray by swearing on facts which were contested. He did so contrary to the professional calling, and without the authority to so do. This, just as in some instances it happens, is a practice which too should be abhorred because the advocate is an oficer of the court and he, just as the court, should be as neutral in the dispute as possible. Theirs is only to advice their clients as well as giving assistance to the court in arriving at a just conclusion. The advocate should not be quick to descend into the arena all of litigants’ disputes to try sway the court to their client’s side. That said, this court now turns the issues for determination. 30. Starting with the first one, it is clear that once an appeal is preferred and section 79G of the Civil Procedure Act, the provisions of Order 42 of this Civil Procedure Rules, 2010 kick in. The issue before this court is that the appellant, now applicant, filed a Record of Appeal but did not comply with the law. He then moved the court to file a Supplementary Record of Appeal. He was granted leave to do so. Unfortunately, he did not file the same supplementary record within the timelines the court granted. Rather, he filed it out of time and now seeks the leave of this court to extend the timeline for that filing or enlarge time to the period by which he filed the impugned Supplemental Record of Appeal. 31. The law regarding the filing and service records of appeal governed by all the 42 Rules 2, 11 and others of the Civil Procedure Rules. Order 42, Rule 2 of the Civil Procedure Rules provides that: “ where no certified copy of the decree or order appealed against is filed with the memorandum of appeal, the appellant shall file such certified copy as soon as possible and in any event within such time as the court may order, and the court need not consider whether to reject the appeal summarily under section 79B of the Act until such certified copy is filed.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1562/eng@2026-02-11 5

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32. Further, in terms of Order 42 Rule 13(4) of the Civil Procedure Rules 2010 provides as follows: “ Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of 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 magistrate made at the hearing; (d) the transcript of any oficial shorthand, typist notes electronic recording or palantypist notes made at the hearing; (e) all afidavits, maps and other documents whatsoever put in evidence before the magistrate; (f) the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal: Provided that— 33. (i) a translation into English shall be provided of any document not 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 paragraphs (a), (b) and (f).” More particularly, Order 42 Rule 13 (4) (a), (b) and (f) provides that: “ Before allowing the appeal to go for hearing the judge shall be satisfied that inter alia, memorandum of appeal, pleadings and the judgment, decree or order appealed are on the court record, and that such of them as are not in the possession of either party have been served on that party.” 34. This means that there are certain documents, as specified above in Rule 13(4)(a), (b) and (f) which must be part of the Record of Appeal for it to be complete and valid. This Court has had occasion to consider a similar issue and the efiect of failure to have a complete Record of Appeal and that of striking out a Record of Appeal in this level of Court: not the Court of Appeal or Supreme Court whose procedures are governed by separate legislation. Thus, in Cooperative Bank of Kenya v Otiyo & 6 others (Environment and Land Appeal E039 of 2024) [2025] KEELC 8053 (KLR) (11 November 2025) (Ruling), this Court held: “ 36. I note that paragraph (f) of Order 42 Rule 13 of the Civil Procedure Rules is explicit regarding the compulsory decision of the trial court which must be included in the Record. It provided that the Record of Appeal must contain “the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal.” It is a fact that there is a copy of the judgment appealed from on the record of appeal. Only the decree is missing. Should that render the appeal completely defective? The answer lies in the interpretation of the sub rule. The conjunction “or” is definitive in the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1562/eng@2026-02-11 6

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sense that a Record of Appeal should contain on or other of the documents mentioned. Thus, where a judgment is contained in a record of appeal there is no need for a decree. And unlike the Court of Appeal rules which require specific documents including a decree to be file and stipulate that where it is not filed the record of appeal is defective and the appeal is struck out, in the Civil Procedure Rules there is no provision as that. In any event the Court of Appeal rules contemplate an appeal in that court which is commenced with a notice of appeal rather than a memorandum of appeal. When a record of appeal is struck out in this level of appeal it leaves the memorandum of appeal still intact. Article 159(2)(d) of the Constitution obligates courts to determine matters on substantive bases rather than mere technicalities which do not go to the substance of the same. I belief and I am of the humble opinion that the issue raised falls under the latter, that is that it is a technicality.” 35. Of incomplete records of appeal, the Supreme Court of Kenya in the case of Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others [2015] eKLR held that: “ Without a record of appeal, a Court cannot determine the appeal cause before it. Thus, if the requisite bundle of documents is omitted, the appeal is incompetent and defective, for failing the requirements of the law. A Court cannot exercise its adjudicatory powers conferred by law, or the Constitution, where an appeal is incompetent. An incompetent appeal divests a Court of the jurisdiction to consider factual or legal controversies embodied in the relevant issues.” 36. This court is alive to the fact that extension if time is not an automatic right. The applicant must satisfy the court there he had good reason for the delay, and that the delay was not inordinate, and that in any event no prejudice would be occasioned to the adverse party if the extension of time is granted, bearing in mind the need for just and expeditious disposal of disputes because justice delayed is justice denied, and equity will not aid the indolent. 37. So, in the instant matter, how long did the applicant take to move the Court? He took four months, inclusive of the time he took to trace the file from Homabay Court to Oyugis Court and back to Homabay Court. The reasons he gave for the delay is that he could have filed the Supplementary Record of Appeal in 21 days as was granted but the Court file from which he was to obtain the documents to include in the expected Record was unavailable in Oyugis Court. He then had to trace it to this Court where it had been forwarded to for finalization of the appeal. 38. The next question is: was that a good and suficient reason or explanation given? Indeed, this court finds it to be suficient explanation for the delay because the file was transferred in the intervening period between when the order was granted and when the 21 days would lapse. The record of this court shows that the original lower court file was transferred to it by the Oyugis Court vide a letter dated 14th September 2022 and apparently delivered on 29th November 2022 (if the handwritten date on top of the letter transferring it is anything to go by). 39. The issue is whether there would be prejudice to the Respondents if the orders sought were granted. The applicant and the 7th Respondent contend that there would no prejudice if the application is granted. The other respondents think otherwise. 40. In my humble view, there would be no prejudice to the Respondents if the party was allowed to file the Supplementary Record of Appeal. In any event if the Supplementary Record of Appeal is struck out then it leaves the parties with the defective one, and the appeal itself (the Memorandum of Appeal). https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1562/eng@2026-02-11 7

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Also, even if the Record of Appeal was struck out wholly it would leave the Memorandum of Appeal still intact. 41. Thus, the totality of it all is that the application is merited and granted. Costs shall be in the cause. Appellant is given only twenty-one 21 days to file a proper fresh Record of Appeal and serve it within the 21 days, in default the appeal will stand struck out with costs to the Respondents. The matter be mentioned on 06th March 2025 for compliance. 42. Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 11TH DAY OF FEBRUARY 2026. HON. DR. IUR NYAGAKA, JUDGE In the presence of, Achillah Advicate for the Appellant. O.M. Otieno for the 4th and 6th Respondents. No Appearance for other Respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1562/eng@2026-02-11 8

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