Solomon Kenyanya v Rosemary M. Obara, Labh Wholesalers Limited & County Government of Homa Bay

2. The 3rd Respondent/Applicant seeks the following primary orders: I) THAT the Record of Appeal dated 9th July 2026, and the entire appeal herein, be struck out. II) THAT the Applicant be awarded the costs of both the appeal and this application. II. SUMMARY OF PLEADINGS & ORIGIN OF THE APPEAL 3. The genesis of this matter traces back to Homa Bay Chief Magistrate's Court MCELC Case No. E029 of 2024 (originally cited in proceedings as CMELC No. E002 of 2022). The Appellant, Solomon Kenyanya, instituted proceedings against the Respondents in respect of land known as LR No. 1432/152 Homa Bay Township. The Appellant’s primary claim rested on an overriding interest by way of trust pursuant to Section 28(b) of the Land Registration Act, 2012, and a presumed spousal/matrimonial land right arising out of prolonged cohabitation and children born therefrom. 4. Upon full trial, the learned Trial Magistrate, Hon. Jacinta A. Orwa (CM), delivered a Judgment on 17th December 2025 dismissing the Plaintiff’s claim. 5. Dissatisfied with the outcome, the Appellant lodged a Memorandum of Appeal through the firm of M/s G.M. Nyambati & Co. Advocates on 22nd January 2026. On the same day, the firm applied for certified copies of the proceedings and judgment from the lower court registry. 6. Subsequent to the lodging of the Memorandum of Appeal, the firm of M/s Moriasi Osoro & Co. Advocates filed a Notice of Appointment of Additional Advocates dated 8th July 2026 to come on record alongside M/s G.M. Nyambati & Co. Advocates. The incoming firm compiled and served a Record of Appeal dated 9th July 2026 via electronic mail on 10th July 2026. 7. In response to the filing of the Record of Appeal, the 3rd Respondent moved 2|Page HOMA BAY ELC APPEAL NO. E002 OF 2026 – RULING

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this Court via the subject Notice of Motion dated 20th July 2026, anchored on the Supporting Affidavit of Fredrick Orego, the County Attorney for the County Government of Homa Bay, sworn on 20th July 2026. 8. The Applicant grounds its prayer for striking out the appeal on the following procedural infractions: I) Failure to comply with Order 9 Rule 9 of the Civil Procedure Rules: Incoming counsel, M/s Moriasi Osoro & Co. Advocates, filed appellate documents post-judgment without seeking leave of the Court or filing a consent signed by the outgoing advocate. II) Statutory Bar and Inordinate Delay: The Record of Appeal was filed on 9th July 2026, beyond the statutory sixty (60) days prescribed under Section 79B of the Civil Procedure Act following the lodging of the Memorandum of Appeal. III) Lack of Certificate of Delay: The Appellant failed to obtain or include a Certificate of Delay from the registry to account for the period consumed in typing lower court proceedings. IV) Omission of Primary Documents: The Record of Appeal omits a certified copy of the decree/order appealed against, in violation of Order 42 Rule 13 of the Civil Procedure Rules. V) Failure of Service: Neither the Memorandum of Appeal nor the letter bespeaking proceedings was served upon the Respondents within time. III. SUBMISSIONS OF THE APPLICANT 9. The 3rd Respondent filed written submissions and a List of Authorities dated 14th September 2026. Counsel for the 3rd Respondent contends that the competency of an appeal touches directly on the jurisdiction of the Court, arguing that an appeal filed past statutory timelines without prior 3|Page HOMA BAY ELC APPEAL NO. E002 OF 2026 – RULING

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leave is incompetent and incurable under Article 159 of the Constitution or Sections 1A and 1B of the Civil Procedure Act. 10.The 3rd Respondent placed reliance on the following legal precedents: I) County Government of Laikipia v Ngugi & another [2025] KECA 997 (KLR), holding that failure to serve a letter bespeaking proceedings deprives an appellant of the proviso excluding typing time. II) Mugekenyi & 2 others v Waweru & 10 others [2025] KEELC 18670 (KLR), holding that post-judgment change of advocates without leave or consent violates Order 9 Rule 9. III) Otwala & another v Leo [2024] KECA 789 (KLR), emphasizing that affected parties are entitled to move to strike out appeals where essential procedural steps are omitted. IV. ABSENCE OF RESPONSE / REPLY BY APPELLANT 11.Although the Notice of Motion dated 20th July 2026 and the 3rd Respondent's written submissions were duly served, no Replying Affidavit, Grounds of Opposition, or Written Submissions were filed by the Appellant or the 1st and 2nd Respondents. 12.However, an application being unopposed does not operate as an automatic entitlement to the orders sought. This Court retains a duty to independently evaluate the material on record against statutory provisions and judicial precedents to reach a fair determination. V. ISSUES FOR DETERMINATION 13.Having evaluated the pleadings, affidavit evidence, and submissions on record, the following issues fall for determination: I) Whether the legal representation by M/s Moriasi Osoro & Co. Advocates violates Order 9 Rule 9 of the Civil Procedure Rules. 4|Page HOMA BAY ELC APPEAL NO. E002 OF 2026 – RULING

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II) Whether the omission of a formal certified decree renders the Record of Appeal fatally defective. III) Whether the Record of Appeal is incurably defective for non- compliance with statutory timelines under Section 79B of the Civil Procedure Act and whether the entire appeal ought to be struck out. VI. LEGAL REASONING & JURISPRUDENTIAL OPINION A. On Post-Judgment Representation and Order 9 Rule 9 of the Civil Procedure Rules 14.The 3rd Respondent contends that M/s Moriasi Osoro & Co. Advocates lacked locus standi to file the Record of Appeal without obtaining prior leave of the court or a consent from M/s G.M. Nyambati & Co. Advocates pursuant to Order 9 Rule 9 of the Civil Procedure Rules. 15.Order 9 Rule 9 of the Civil Procedure Rules provides that where there is a change or addition of advocate after judgment has been passed, such change shall not be effected without an order of the court or a consent filed between the outgoing and incoming advocates. However, the rationale behind Order 9 Rules 9 and 10 was to cure the specific mischief of litigants abruptly discharging advocates at the execution stage or upon filing bill of costs to evade paying legal fees. The provisions were enacted primarily to safeguard the fee interests of advocates in the suit where judgment was rendered. 16.An appeal to an appellate court stands on a distinct legal footing. The application of rule 9 is an issue that has incessantly recurred and vexed the courts, and in determining the issue of whether or not compliance is mandatory, the courts have reached varied conclusions dependent on the circumstances and facts of each case. Needless to say that, in each case, the purport of these rules, their application, and the mischief that was sought to 5|Page HOMA BAY ELC APPEAL NO. E002 OF 2026 – RULING

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be addressed requires to be taken into account. 17.In Stanley Mugambi vs Anthony Mugambi [2005] eKLR, Sitati, J. stated thus: “The issue for determination is whether commencing an appeal by an advocate other than the one who conducted the case in the lower court falls within the provisions of Order III Rule 9A. In my considered view, I do not think so. My reading of the provisions of Rule 9A is to the effect that such change or intention is restricted to a suit that is either going on or one that has been concluded. The rule does not apply to appeals. If the intention of the drafters was to include appeals under this rule it would have been so stated. To my mind, Rule 9A envisages a situation where after judgment has been entered, a new advocate desires to come on record for purposes of applying for stay of execution or to proceed with execution proceedings in that suit. If any other meaning were to be assigned to the rule, the High Court and the Court of Appeal would be inundated with time consuming applications by advocates wishing to file appeals on behalf of litigants who were represented by different advocates in the lower court. I would agree with Mr. C. Kariuki for the appellant/respondent that the aim of Rule 9A was only intended to prevent parties from throwing out an advocate after judgment with the aim of denying the advocate the fruits of their costs. I therefore find that this application is misplaced and misconceived. It would, in my view, be draconian to strike out the appellant’s appeal on the ground raised in the application.” 18.These observations were supported by Makhandia, J., (as he then was) in Martin Mutisya Kiio & Another vs Benson Mwendo Kasyali, Machakos High Court Misc. Application No. 107 of 2013, where in respect of Order 9 Rule 9 6|Page HOMA BAY ELC APPEAL NO. E002 OF 2026 – RULING

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it was asserted that: “… such submission has no legal basis, … that where a firm of Advocates has acted for a party in the lower court, those instructions are terminated and/or were spent or exhausted with the conclusion of the trial in the lower court. An appeal is a different ball game; it can be filed by any other firm of Advocates on instructions of the Appellant without necessarily having to file Notice of Change of Advocates or filing an application to come on record in place of the previous Advocates. In other words, an appeal is fresh proceedings which can be initiated by any other firm of Advocates on instructions of the Appellant without regard to the previous Advocates who acted in the trial court.” 19.And echoed by Emukule, J., in Kenya Pipeline Company Limited vs Lucy Njoki Njuru [2014] eKLR, who adopted the same approach when he stated: “More importantly unlike the ordinary trial or review, or other interlocutory applications within the same cause or matter, an appeal is a “different ball game”. The proceedings are fresh or new, and are before a Superior Court, and a party, including both the Appellant or Respondent, are at liberty to change or instruct a new set of counsel to represent them.” 20. In Tobias M. Wafubwa v Ben Butali [2017] KECA 142 (KLR), the Court of Appeal Judges considering the above matters observed thus: “We are of the same view, and would adopt the same approach in its entirety in matters concerning appeal. Once a judgment is entered, save for matters such as applications for review or execution or stay of execution inter alia, an appeal to an appellate court is not a continuation of proceedings in the lower court, but a commencement of new proceedings in 7|Page HOMA BAY ELC APPEAL NO. E002 OF 2026 – RULING

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another court, where different rules may be applicable, for instance, the Court of Appeal Rules, 2010 or the Supreme Court Rules, 2010. Parties should therefore have the right to choose whether to remain with the same counsel or to engage other counsel on appeal without being required to file a Notice of Change of Advocates or to obtain leave from the concerned court to be placed on record in substitution of the previous advocate. As this dispute concerned an appeal from the Principal Magistrate’s Court to the High Court, it involved the commencement of new proceedings, and we are satisfied that the respondent’s counsel was entitled to commence them without filing a Notice of Change of Advocates or seeking the leave of the court to be placed on record.” 21.The Judges went further to add, “ provided that where the failure to comply with Rule 9 did not undermine the jurisdiction of the court, or affect the core of the dispute in question, or prejudice either of the parties in any way as to lead to a miscarriage of justice, then, Article 159 of the Constitution and the overriding principles could be called upon to aid the court to dispense substantive justice through just, efficient and timely disposal of proceedings”. 22.A similar approach was invoked in Boniface Kiragu Waweru vs James K. Mulinge [2015] eKLR, where in addressing the issue of non-compliance with Order 9 Rule 9 this Court observed thus: “All in all we are not persuaded that non-compliance with Order III rule 9A of the Civil Procedure Rules was meant to make the following proceedings incompetent or a nullity, efficacious as the provision was meant to be. Indeed all times, the set procedures ought to be followed or complied with. However, we find that non-compliance, in the present matter, did not go to the root of the proceedings. The non-compliance we 8|Page HOMA BAY ELC APPEAL NO. E002 OF 2026 – RULING

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may say, was procedural and not fundamental. It did not cause prejudice to the appellant at all…” 23.An advocate's retainer in the trial court is ordinarily exhausted upon the conclusion and delivery of judgment in that forum. An appeal constitutes fresh appellate proceedings. Requiring leave or consent before a party can instruct new or additional counsel to lodge an appeal would unnecessarily fetter an appellant’s constitutional right to legal representation of choice under Article 50 of the Constitution and defeat the expeditious disposal of disputes. This principle has been consistently affirmed by courts of concurrent jurisdiction, including Stanley Mugambi v Anthony Mugambi, Kenya Pipeline Company Limited v Lucy Njoki Njuru, and Martin Mutisya Kiio & another v Benson Mwendo Kasyuli. 24.Consequently, this Court finds that Order 9 Rule 9 of the Civil Procedure Rules does not operate as a bar to incoming advocates filing appellate pleadings upon the initiation of an appeal. The objection raised on this ground is without merit. In my view, the issue being one of failure to comply with Rule 9, it was a procedural lapse that did not go to the root of the appeal and Article 159 of the Constitution cures any irregularity or omission to comply. B. On Omission of a Certified Copy of the Decree (Order 42 Rule 13) 25.The Applicant further asserts that the Record of Appeal is incompetent under Order 42 Rule 13(2)(f) for omitting a certified copy of the formal decree. 26. Section 2 of the Civil Procedure Act provides that "for appeal, 'decree' includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree... may not have been drawn up..." This statutory 9|Page HOMA BAY ELC APPEAL NO. E002 OF 2026 – RULING

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proviso considers the presence of the judgment sufficient where the formal decree has not been drawn, provided the substance of the adjudication is clear. 27.This omission brings into focus the provisions of Order 42 Rule 2 of the Civil Procedure Rules which provides inter alia: “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.” 28.Order 42 Rule 13(4)(f) of the Civil Procedure Rules requires the inclusion of a copy of the judgment, order, or decree appealed from. Where the record of appeal contains a certified copy of the judgment, pleadings, proceedings, and evidence from the trial court, the failure to attach a drawn decree is a technical omission that does not vitiate the appeal. 29.The Court of Appeal clearly articulated this position in Emmanuel Ngade Nyoka v Kitheka Mutisya Ngata (Civil Appeal No. 63 of 2016) [2017] eKLR: "According to the Judge, the record of appeal before him had a certified copy of the judgment of the trial court. Consequently, he reasoned, the record of appeal was competent notwithstanding the fact that a formal decree had not been included in the record. We entirely agree with the reasoning of the learned Judge on this aspect. In any event, this was a mere technicality that could not have sat well with the current constitutional dispensation that calls upon courts to go for substantive justice as opposed to technicalities. Further holding otherwise would have run counter to the overriding objective as 10 | P a g e HOMA BAY ELC APPEAL NO. E002 OF 2026 – RULING

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captured in sections 1A and 1B of the Civil Procedure Act. Finally, one would ask what prejudice did the appellant suffer with the omission of the certified copy of the decree in the record of appeal. We do not discern any." 30.Similar findings were reached in Nyota Tissue Products v Charles Wanga & 4 others [2020] eKLR, Dragon Fire Protection Limited v African Highlands Produce Co Ltd [2023] KEHC 1735 (KLR), and Quick Shuttle Sacco v Joel & another [2026] KEHC 1573 (KLR), where courts declined to strike out appeals for lack of a formal decree when the full judgment was present. The primary object of the record of appeal is to enable the appellate court to evaluate the trial court's decision on its merits. The Applicant has demonstrated no prejudice suffered as a result of this omission. Striking out an appeal on this ground would be overly draconian and contrary to Article 159(2)(d) of the Constitution. C. On Timelines, and the Overriding Objective 31.The core pillar of the 3rd Respondent’s application rests on statutory delay. Section 79B states that before an appeal from a subordinate court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree, part of a decree or order appealed against he may, notwithstanding section 79C, reject the appeal summarily. Section 79C states that Appeals from subordinate courts shall be heard by one judge of the High Court except when in any particular case the Chief Justice shall direct that the appeal be heard by two or more judges of the High Court; and such direction may be given before the hearing of the appeal or at any time before judgment is delivered. Under Section 79B of the Civil Procedure Act, an appeal from a subordinate court must be entered within thirty (30) days from the date of 11 | P a g e HOMA BAY ELC APPEAL NO. E002 OF 2026 – RULING

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the decision appealed against. 32.The judgment was delivered on 17th December 2025. The Appellant timely lodged the Memorandum of Appeal on 22nd January 2026. However, the Record of Appeal was filed on 9th July 2026—over 168 days after the Memorandum of Appeal was lodged. 33.To begin with, there is no legal requirement that the record of appeal in an appeal from a subordinate court to the High Court must be filed within sixty days from the date of filing of the memorandum of appeal. This requirement only applies to appeals from the High Court to the Court of Appeal where an appellant is obliged to file the record of appeal strictly within sixty days of filing the notice of appeal. 34.In the present scenario, the court will only be concerned with whether the same has been filed within a reasonable period or within the period ordered by the court. In this case, it has not been shown that there was a court order which required the appellant to file the said document within 60 days of filing the memorandum of appeal. 35.In James Kinja M’Thaimuta (Suing as the legal representative of the estate of David Murangiri deceased) v Cyrus Mwenda (2019) eKLR, the Court held: “I note that the appellant did not attach the decree of the trial Court. That may have been a fatal mistake or oversight but for reason that it is but a mere technicality. In South Nyanza Sugar Co. Ltd v Daniel Obara Nyandoro (2010) eKLR, it was held: - “In my view, it will amount to miscarriage of justice for this court to strike out the appeal for the reason as advanced by Mr. Ogweno when the appeal had already been admitted and directions taken in the presence of counsel for both parties. In any event, the lower court record is before this court and no prejudice will be occasioned to the Respondent by 12 | P a g e HOMA BAY ELC APPEAL NO. E002 OF 2026 – RULING

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reference to the same. In addition, it will be against the spirit of overriding objectives of the Civil Procedure Act as stated under Section 1A and 1B for this court to summarily reject the appeal for want of decree.” 36. In Rosavie (EPZ) Limited –v– Stanlex Mbithi [2020] eKLR, the Court in dismissing a similar application stated as follows: “The law on dismissal of an appeal for want of prosecution is contained in Order 42 Rule 35 of the civil Procedure rules. The rule contemplates two scenarios when an appeal can be dismissed. One is where three (3) months after issuance of directions no steps have been taken to prosecute the appeal i.e. Order 42 Rule 35 (1), and the second is where no steps have been taken to prosecute the appeal within one year after the service of the memorandum of appeal i.e. Order 42 35 (2). Under the first scenario, it is the Respondent to move the Court whilst under the second scenario, the action is by the registrar. In the instant case, no directions have been taken. The applicable provision therefore is Order 42 rule 35 (2) which specifically provides that: “If, within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal.” 37. In UAP Insurance Company Limited v Washington Gaura Kimani [2016] eKLR, the Court in dismissing a similar application stated as follows: “Order 35 (1) provides for a situation where three months after issuance of directions under Order 42 Rule 13, no steps have been taken by the Appellant to fix the Appeal for hearing. In such a case, the Respondent can 13 | P a g e HOMA BAY ELC APPEAL NO. E002 OF 2026 – RULING

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either fix the Appeal for hearing or apply by summons for it to be dismissed. In the case of Kirinyaga General Machinery Vs Hezekiel Mureithi Ireri HCCC No. 98/2008 the judge observed:- “It is clearly seen from that rule that before the respondent can move the court either to set the appeal down for hearing or to apply for dismissal for want of prosecution, directions ought to have been given as provided under rule 79B.” The second scenario is that contemplated under Order 42 Rule 35 (2): If within one year after service of the Memorandum of Appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a Judge in chambers for dismissal. Nothing that no directions have been issued in this Appeal and based on the provisions of Order 42 Rule 35(1), I have no reason to deviate from the holding in Kirinyaga General Machinery Vs Hezekiel Mureithi Ireri (supra).” 38.Courts must balance statutory compliance against the constitutional imperative under Article 50(1) guarantees of access to justice and fair hearing. As Apaloo, JA, famously stated in Philip Keipto Chemwolo & another v Augustine Kubende (Civil Appeal 103 of 1984) [1986] eKLR: “Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court, as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline. In this case, the appellants offered to pay the costs. The respondent will not agree.” 14 | P a g e HOMA BAY ELC APPEAL NO. E002 OF 2026 – RULING

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39.This broad equitable principle was reaffirmed by the Court of Appeal in Tobias M. Wafubwa v Bishop Ben Butali [2017] eKLR, upholding the exercise of judicial discretion to overlook procedural technicalities where no fraud, bad faith, or intentional overreaching is shown. 40. I have gone through the three decisions referred to by Counsel. It should be appreciated that in those three authorities, two matters were before the Court of Appeal, and it is worth noting that they have no relevance to the case at hand. One was before a court of concurrent jurisdiction where the applicant sought to review the Judgment. 41. In County Government of Laikipia v Ngugi & another (Civil Appeal (Application) 62 of 2019) [2025] KECA 997 (KLR), the applicant herein, who is also the 1st respondent in the main appeal, filed a Notice of Motion dated 26th April 2019, brought pursuant to Rules 42(1), 43(1), 82(1) and 84 of the Court of Appeal Rules (2010). He sought to strike out the appeal and the court found that he could not benefit from Proviso 1 under Rule 86 of the Rules. The court ruled that the appeal ought to have been filed within 60 days from the date of filing the notice of appeal. 42. In Mugekenyi (Suing as the Administrator for the Estate of Mbugua Mugekenyi (Deceased)) & 2 others v Waweru & 10 others (Environment and Land Case 162 of 2017) [2025] KEELC 18670 (KLR), the matter was before a court of concurrent jurisdiction where the Applicant sought to review and have an order that the trial take place de novo. The court held that the spirit behind the provisions of Order 9 Rule 9 of the Civil Procedure Rules is not to impede the right of a party to be represented by an Advocate of his/her choice, but the provisions set out the procedure to be adhered to when a party wants to change Counsel after Judgment has been delivered so as to avert any undercutting and or chaos. 43.In Otwala & another v Leo (Sued in His Capacity as Personal Representative 15 | P a g e HOMA BAY ELC APPEAL NO. E002 OF 2026 – RULING

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of the Estate of Paskalia Awuor Omondi) (Civil Appeal (Application) E113 of 2023) [2024] KECA 789 (KLR), the motion was brought pursuant to rules 77, 82 and 84 of the Court of Appeal Rules 2010, seeking that the notice of appeal dated 25th March 2022 be struck out. The court held that from the history of activities the applicant had not fulfilled the proviso to Rule 86 of that Court’s Rules. 44.From the chronology of events highlighted hereinabove, the court finds that the record of appeal was filed within a reasonable time and is therefore competently before the court. On 12th June 2026, the court gave directions on filing and serving the Record of Appeal which was to be done within 30 days. 45.The Appellant has compiled and filed the complete Record of Appeal on 13th July 2026, demonstrating readiness to have the land dispute determined on its merits. The contention made by counsel for the 3rd respondent is that the same was filed within sixty days prescribed under section 79B. 46.Section 79B provides that before an appeal from a subordinate court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree, part of a decree or order appealed against he may, notwithstanding section 79C, reject the appeal summarily. Further thereto, Section 79G provides that Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time. 16 | P a g e HOMA BAY ELC APPEAL NO. E002 OF 2026 – RULING

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47.I find the submission by Counsel that Section 79B provides for service within sixty (60) days rather misleading, and counsel may have misconstrued the Civil Procedure Rules and elevated the same to the Court of Appeal Rules which make provision for striking out a notice of appeal and record of appeal. 48.It is instructive to note that the Appellate Jurisdiction Act and Court of Appeal Rules embody deeming provisions which appear to be an inbuilt case-management system loaded into the Rules. It enables the Court, ideally, to clean up its records by striking out all the notices of appeals that have not been followed up, within 60 days, by records of appeal. It is a rule that telegraphs those notices of appeal should not be lodged in jest or frivolously, with no real or serious intention to actually institute appeals. 49.Order 42 Rule 12 stipulates that where the judge admits the appeal under section 79B of the Act, the registrar shall notify the appellant who shall serve the memorandum of appeal on every respondent within seven days of receipt of the notice from the registrar. The correct legal position is that once the Court makes directions under Order 42 Rule 11 that a Record of Appeal be prepared and served, it is only then, in my view, that a party is required to file and serve a record of appeal. 50.This position is completely different from the position obtaining in the Court of Appeal and the Supreme Court. In those Courts, their Rules expressly provide for the filing of the Record of Appeal when appealing to those Courts. In this regard, I am of the view that the practice and procedure in those courts regarding the filing and service of Records of Appeal do not strictly apply to appeals before this court. In this regard, the pronouncements in those courts regarding the failure to include a certified copy of the decree or order in the Record of Appeal are not applicable here. 51.Strictu sensu, there is no requirement in Sections 79, 79A, and 79B of the 17 | P a g e HOMA BAY ELC APPEAL NO. E002 OF 2026 – RULING

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Civil Procedure Act and Order 42 of the Civil Procedure Rules for the filing of a Record of Appeal in an appeal to the High Court. The filing of such records has been out of practice and convenience. It will be a requirement however, if the Court directs as such when giving directions under Order 42 Rule 3 of the Civil Procedure Rules. Dismissing the appeal summarily at this interlocutory stage would drive the Appellant from the seat of justice unheard. Any inconvenience caused to the Respondents by the delay in compiling the record can be adequately compensated by an appropriate order for costs. 52.Further holding otherwise would have run counter to the overriding objective as captured in sections 1A and 1B of the Civil Procedure Act. 53.Finally, one would ask what prejudice did the appellant suffer with the omission of the certified copy of the decree in the record of appeal? I do not discern any. VII. CONCLUSION & ORDERS 54.In light of the constitutional mandate under Article 159(2)(d) to administer substantive justice without undue regard to procedural technicalities, and guided by the binding decisions of the Court of Appeal, this Court finds that the procedural omissions identified do not render the appeal fundamentally defective or incurable. 55.Consequently, the 3rd Respondent's Notice of Motion dated 20th July 2026 is hereby determined as follows: I) THAT the 3rd Respondent’s Notice of Motion dated 20th July 2026 seeking to strike out the Record of Appeal and the entire appeal be and is hereby DISMISSED. II) THAT the Record of Appeal dated 9th July 2026 be and is hereby DEEMED properly filed and served upon all parties, without 18 | P a g e HOMA BAY ELC APPEAL NO. E002 OF 2026 – RULING

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prejudice that if the same has not been served, service be done forthwith and an affidavit of service be filed. III) THAT costs shall abide the outcome of the Appeal. ORDERS ACCORDINGLY. DATED, SIGNED, AND DELIVERED ELECTRONICALLY AT HOMA BAY THIS 22ND DAY OF SEPTEMBER 2026. J.W. WANYONYI JUDGE In the presence of: 1. Court Assistant: Ms. Awino 2. Odhiambo, Counsel for the 3rd Respondent/Applicant: Present 3. Osoro, Counsel for the Appellant: Present 4. Kebungo, Counsel for the 1st & 2nd Respondents: Present 19 | P a g e HOMA BAY ELC APPEAL NO. E002 OF 2026 – RULING

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