REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYAMIRA (CHERERE-J) HCCA E078 OF 2025 BETWEEN EVANS OGETO.................................................APPELLANT/RESPONDENT AND ANNAH OSORO.................................................RESPONDENT/APPLICANT RULING 1. Before the Court is the Respondent/Applicant’s application dated 08th December 2025 seeking to strike out the Memorandum of Appeal on the ground that the same was filed outside the statutory period provided under Section 79G of the Civil Procedure Act and without leave of the Court. 2. By his Replying Affidavit sworn on 14th May 2026, by Evans Ogeto, the Appellant avers that the delay in filing the appeal was neither intentional nor inordinate and that the appeal raises serious and arguable issues of law and fact which ought to be heard and determined on merit. 3. It is not disputed that the appeal was 3 days filed outside the statutory timeline. In Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] KECA 600 (KLR), the Court of Appeal observed that Article 159(2) (d) of the Constitution and the overriding objective principle are intended to advance substantive justice and are not to be invoked to defeat procedural
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rules altogether. The Court has taken that reasoning into account alongside the oxygen principles under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution. 4. In the present matter, striking out the appeal on account of a 3 days delay would amount to elevating procedural technicalities above substantive justice, particularly where the appeal raises arguable issues relating to liability and ownership of the motor vehicle. 5. Further, the Applicant has not demonstrated any prejudice that would warrant striking out the appeal before it is heard on merit. 6. The Court is therefore not persuaded that this is a proper case for the drastic remedy of striking out the appeal. 7. Consequently, the application dated 08th December 2025 is hereby dismissed. The appeal is deemed as properly on record. Costs shall abide the outcome of the appeal. DELIVERED AT NYAMIRA THIS 2026 21st DAY OF WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda For Appellant/Applicant - Mr. Sagwa for C.R.Sagwa & Co. Advocates May
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For Respondent Advocates - Mr. Omwoyo for Moerwa Omwoyo & Co.
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