Mwania Mutyengau v Katutu Isika & 1 other

from the date of the Ruling. That the appeal was filed out of time as the appeal was filed out of the stipulated time of 30 days. 4. He disputes the contention by the applicant that the memorandum of appeal is grossly incompetent, incurably defective and a nullity and of no legal consequence as Section 79G of the Civil Procedure leaves room for the exercise of discretion. It is submitted that the delay was due to the mistake by the applicant as to the date the ruling was delivered. He relies on Matindi & Another -vs- Gachiku & Another (Misc Civil Appeal 208/2023 (2024) KEHC 9456 9KLR) 26/07/2024 Ruling where the court stated that the explanation by the applicant on the reason for the delay as satisfactory. 5. On whether the memorandum of Appeal is incurably defective, the appellant relies on Section 3A of the Civil Procedure Act and that the court has inherent powers to make such as may be in the interest of justice. That the delay of nine days was not deliberate. That the appeal is arguable and has high chances of success. The applicant relies on the decision of the High Court in Edith Gichungu Koine vs- Stephene Njagi Thoithi (2014) eKLR. It submitted that the appeal is not incurably defective. 6. The respondent filed authorities and urged the court to find that the memorandum of appeal is incurably defective as the appellant did not seek leave to appeal out of time. I have considered the preliminary objection. The issue of the competence of the appeal is a substantive issue which the court has to determine as a preliminary point. It raises an issue of jurisdiction as the court is mandated to determine disputes that are properly before it and in accordance with the law. 7. In the land mark case of Mukisa Biscuits Manufacturing Company Limited -vs- Westend Distributors Company Limited (1969) E.A the principles for raising a preliminary objection were stated to be as follows: “ So far as I am aware a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit…” Charles Newbold JA stated: A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion…” A preliminary objection is raised on a pure point of law and it ceases to be a preliminary objection if the court has to ascertain some facts. 8. In this case the applicant has conceded that the appeal was filed out of time. Section 79G of the Criminal Procedure Code provides: “ 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.” 9. The appeal was supposed to be filed within thirty days. So, what is raised is a pure point of law which is that the appellant failed to comply with the timelines for filing of an appeal from the sub-ordinate https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19620/eng@2025-11-12 2

page 2 of 3

court. The Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral and Boundaries Commission & 7 Others (Supra) held as follows: “ By filing an appeal out of time before seeking extension of time and subsequently seeking the court to extend time and recognise such an appeal; it is tantamount to moving the court to remedy an illegality. This the court cannot do. To file an appeal out of time and seek he court to extend the time is presumptive and inappropriate. No appeal can be filed out of time without leave of the court. Such a filing renders the document so filed a nullity and of no legal consequence. Consequently, this court will not accept a document filed out of time without leave of the court, it is unfortunate that Petition has been accorded number in this court’s registry. This is irregular as that document is unknown in law and the same should be struck out. Where one intends to file an appeal out of time and seeks extension of time, the much he can do is to annex the draft intended petition of appeal for the court’s perusal when making his application for extension of time and not to fie an appeal and seek to legalise it. Having been filed out of time and without leave (an order of this court extending time) is expunged from court record.” 10. The Supreme Court was stating that where a time is set for doing something, there should be compliance to make that thing valid and lawful but where the time set lapses a party must first seek extension of that time before, he can proceed. No explanation for the delay in filing the Appeal out of time can be entertained as that would only be relevant in an application seeking to file Appeal out of time. 11. The applicant has conceded that the appeal was filed out of time. It follows that there is no competent Appeal before this court. Guided by the Supreme Court decision cited above, the Appeal is dead on arrival. 12. I find that the Appeal is a nullity and of no legal consequences as the appellant filed it without seeking leave from the court. I find that the Preliminary Objection has merits. I order that the Appeal be struck out with costs. DATED, SIGNED AND DELIVERED AT KITUI THIS 12TH DAY OF NOVEMBER, 2025. HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19620/eng@2025-11-12 3

page 3 of 3