Gasim Mbarak Mohamed & 1 other v Anwar Said Mbarak & Another

4. This Court ordered that the application and the Preliminary Objection would be heard together. The parties were directed to file written submissions for or against the application and the Preliminary Objection. Pursuant to these directions, the respondent filed submissions dated 28th July 2025 and 21st October 2025. The appellant's submissions are dated 23rd July 2025. 5. Because the preliminary objection is capable of disposing of the matter, I shall address it first. If the objection is without basis, I will consider the application on the merits. 6. There is no doubt that the appeal was filed without leave, long after the impugned decision was made. Rule 86 of the Kadhis' Courts (Procedure and Practice) Rules, 2020 stated that:- 7. “ (1) An appeal against the decision of the Kadhi's court shall be made to the High Court, and against the decision of the High Court to the Court of Appeal. (2) An appeal shall be made by giving a notice of appeal. (3) An appellant may appeal against the whole or any part of a decision. (4) The notice of appeal shall be filed within thirty days from the day on which the decision was pronounced, and shall state whether the whole or part only, and what part, of the decision is appealed against.” Rule 87 provides that:“ The procedures on appeal shall be in accordance with the Civil Procedure Rules and the Court of Appeal Rules, as appropriate.” 8. The preliminary objection challenges the appellants' decision to file an appeal out of time, without first seeking and obtaining leave to do so. Is the appeal before the Court capable of being cured by the issuance of appropriate orders, or is it a nullity as the respondent contends? 9. The proviso in section 79 G of the Civil Procedure Act states that:“ 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.” 10. The appellant contended that this Court could extend time under Order 50 Rule 6 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, and Article 159 (2(d) of the Constitution of Kenya, 2010. Counsel for the appellant relied on the Court of Appeal decision in Abdirahman Abdi v Safi Petroleum Products Ltd & 6 others [2011]eKLR, where it was stated that:“ In the days long gone, the court never hesitated to strike out a notice of appeal or even an appeal if it was shown that it had been lodged out of time, regardless of the length of delay. The enactment of sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya, and later, Article 159(2)(d) of the Constitution of Kenya, 2010, changed the position. The former provisions introduced the overriding objective in civil litigation in which the court is mandated to consider aspects like the delay likely to be occasioned, the cost, and prejudice to the parties should the court strike out the ofiending document. In short, the court has to weigh one thing against another for the benefit of the wider interests of justice before coming to a decision one way or the other. Article 159 (2)(d) of the Constitution makes it abundantly clear that the court has to do justice between the parties without undue regard to the technicalities of procedure. That is not, however, to say that procedural improprieties https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4277/eng@2026-01-30 2

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are to be ignored altogether. The court has to weigh the prejudice that is likely to be sufiered by the innocent party and weigh it against the prejudice to be sufiered by the ofiending party if the court strikes out its document. The court in that regard exercises judicial discretion.” 11. I have considered the preliminary objection and the parties' submissions. It appears to me that the appellant seeks this Court's validation of its decision to file an appeal without first obtaining an extension of time to do so. In my view, the situation in this case is similar to that faced by the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR). In that case, the Supreme Court rejected an appeal filed out of time without leave. The Court emphatically stated that: “ In his submissions, counsel for the applicant acknowledged having already filed his appeal. He now prays for extension of time and urges that once so granted, the Petition of appeal already filed be deemed to have been duly filed. 52. What we hear the applicant telling the court is that he is acknowledging having filed a ‘document’ he calls ‘an appeal’ out of time without leave of the court. Pursuant to rule 33(1) of the court’s rules, it is mandatory that an appeal can only be filed within 30 days of filing the notice of appeal. Under rule 53 of the court’s rules, this court can indeed extend time. However, it cannot be gainsaid that where the law provides for the time within which something ought to be done, if that time lapses, one needs to first seek extension of that time before he can proceed to do that which the law requires. 53. By filing an appeal out of time before seeking an extension of time, and subsequently seeking the court to extend time and recognize such an appeal, is tantamount to moving the court to remedy an illegality. This, the court cannot do. 54. To file an appeal out of time and seek the court to extend time is presumptive and inappropriate. No appeal can be filed out of time without leave of the court. Such a filling 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 No 10 of 2014 has been accorded a reference 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 file an appeal and seek to legalize it. Petition No 10 of 2014, having been filed out of time and without leave (an order of this court extending time), is expunged from the court’s record. 12. Applying the holding above to this case leads me to one conclusion: that the appeal filed herein is defective. Accordingly, the appeal is struck out. 13. As the application is founded on an appeal that has been struck out, it follows logically that it lacks a substratum. The same is similarly struck out. 14. Since this is an appeal from the decision of the Kadhi’s Court between relatives, I decline to award costs. Parties shall bear their respective costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4277/eng@2026-01-30 3

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15. It is so ordered. DATED AND SIGNED IN MOMBASA THIS 30TH DAY OF JANUARY 2026. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of:Mr Maulidi, for the Appellant; Ms Hamid, holding brief for Mr Hamza, for the Respondent; and Ms Bancy – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4277/eng@2026-01-30 4

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