Rose & 3 others v Njuguna (Suing as the Personal Representative of the Estate of Mutero Njuguna – Deceased) (Civil Case E094 of 2023) [2025] KEHC 19623 (KLR) (15 October 2025) (Ruling) Neutral citation: [2025] KEHC 19623 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIVASHA CIVIL CASE E094 OF 2023 GL NZIOKA, J OCTOBER 15, 2025 BETWEEN EGO ROSE .......................................................................................... 1ST APPELLANT NATIONAL INDUSTRICAL CREDIT BANK LIMITED ........... 2ND APPELLANT BIG ROAD ENTERPRISES .............................................................. 3RD APPELLANT JULIUS MUTUMA GIKUNDI ......................................................... 4TH APPELLANT AND EMILY WANGECHI MUTERO NJUGUNA (SUING AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF MUTERO NJUGUNA – DECEASED) .......................................................................................... RESPONDENT RULING 1. The subject application herein is dated 30th September 2024. The applicant is seeking that, the appeal be struck out as it was filed out of the stipulated period of two (2) weeks. 2. The application was opposed through a replying affidavit dated 18th October 2024, on the ground that, the appeal was filed within the stipulated timelines. 3. The parties have filed submissions to dispose of the matter which are considered herein. 4. In considering the application, I note that the appeal was filed on 31st November 2023. On 5th February 2024, the appellant was given two (2) weeks within which to file and serve a Record of Appeal. 5. By 14th March 2024 no record had been filed and the court ordered a notice to show cause why the matter could not be dismissed do issue. By 25th April 2024, the Record of Appeal had been filed and the matter referred to the Hon. Deputy Registrar to confirm if the Record of Appeal was complete. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19623/eng@2025-10-15 1
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6. On 2nd May 2024 the appellant appeared before the Hon. Deputy Registrar. However, on 9th May 2024 the appellant did not appear before the court and a notice to show cause was issued once again and extended to 19th June 2024. A response to the notice was offered on 30th July 2024 and notice cancelled once again the matter was referred to the Hon. Deputy Registrar. 7. However, before further orders were made in the matter, the respondent filed the subject notice of motion application herein. 8. In further consideration of the matter, I note that, by 14th March 2024, the Record of Appeal had not been filed, yet the two weeks given expired on 20th February 2024, consequently the appellant cannot argue that they filed the record within the stipulated time. 9. However, notably the respondent continued participating in the matter even after the two (2) weeks lapsed and only sought for striking out of the record much later. 10. Be that, as it may, striking out of pleading is a draconian act as stated by Madan JA (as he then) was in case of D.T. Dobie & Co. (K) Ltd –Vs- Machura 1982 eKLR. Furthermore, if there was a delay in filing the Record of Appeal, the same lies at the feet of the instructed law firm on record. The appellant may not hold any blame and the repo effect of striking out any pleading falls squarely on the party. 11. That said, the respondent has genuine concern over delay in prosecuting the matter. But I hold the view that, respondent’s interest can be addressed through costs. 12. In that regard I decline to strike out the appeal, as the delay was not prolonged. However, I order the appellant pays the respondent thrown away costs of Kshs 10,000 before the date of appearance. 13. That is the order of the court. DATED, DELIVERED AND SIGNED THIS 15TH DAY OF OCTOBER 2025 GRACE L. NZIOKA JUDGE In the presence of Mr Gatabia for the respondent Mr Mwangi for the appellant Mr. Komen- Court assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19623/eng@2025-10-15 2
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