REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYAMIRA (CHERERE-J) HCCA E077 OF 2025 BETWEEN EVANS OGETO.................................................APPELLANT/RESPONDENT AND JOYCE KEREBI MOTURI..............................RESPONDENT/APPLICANT RULING th 1. By application dated 08 December 2025, Joyce Kerebi Moturi, the Applicant/Respondent seeks the striking out the Memorandum of Appeal dated 24th November 2025 and filed on 26th November 2025 on grounds that the same was filed out of time and without leave of the Court. The Applicant contends that the appeal offends Section 79G of the Civil Procedure Act since judgment had been delivered on 09th October 2025 and the statutory period for filing the appeal had lapsed by the time the Memorandum of Appeal was lodged. 2. Evans Ogeto, the Appellant opposes the application through the Replying Affidavit sworn on 14th May 2026 wherein he avers that the delay was neither deliberate nor inordinate and that the appeal raises arguable issues touching on liability and ownership of the motor vehicle. 3. Judgment in the lower court was delivered on 09th October 2025, while the present appeal was filed on 26th November 2025. The appeal was therefore
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lodged 18 days beyond the statutory period of 30 days provided under section 79G of the Civil Procedure Act. 4. The Court has perused the Memorandum of Appeal and notes that the appeal challenges the findings of the trial court on ownership of the motor vehicle, liability, and the evidentiary value of the police abstract report. 5. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] KECA 113 (KLR), the Supreme Court emphasized that striking out pleadings is a draconian remedy that should only be employed in the clearest of cases and that courts should lean towards sustaining rather than terminating proceedings on account of procedural lapses that do not occasion prejudice or miscarriage of justice. 6. In the present matter, striking out the appeal on account of delay would amount to shutting out the Appellant from ventilating arguable grievances on merit, yet no prejudice has been demonstrated by the Applicant. 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 WAMAE.T. W. CHERERE JUDGE 21st DAY OF May
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Appearances Court Assistant - Hilda For Appellant/Applicant - Mr. Sagwa for C.R.Sagwa & Co. Advocates For Respondent Advocates - Mr. Omwoyo for Moerwa Omwoyo & Co.
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