REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYAMIRA (CHERERE-J) HCCA E073 OF 2025 BETWEEN EVANS OGETO..............................................APPELLANT/RESPON DENT AND JANE MORAA ONDIEKI..............................RESPONDENT/APPLICANT RULING 1. Before the Court is the Notice of Motion dated 08 thDecember 2025 seeking to strike out the Memorandum of Appeal dated 24th November 2025 and filed on 26 th November 2025 on the ground that the appeal was filed outside the period prescribed under Section 79G of the Civil Procedure Act. The application is supported by the affidavit of Jane Moraa Ondieki, the Applicant/Respondent sworn on even date together with the annexures marked “JMO 1” and “JMO 2”. 2. The application is opposed through the Replying Affidavit sworn on 14th May 2026 by Evans Ogeto, the Appellant/Respondent in which he contends that the delay was neither intentional nor inordinate, that the appeal raises substantive and arguable issues touching on ownership of the
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motor vehicle, proof of negligence and liability, and that the dispute ought to be determined on merit rather than on procedural technicalities. 3. It is not disputed that the judgment appealed from was delivered on 23rd October 2025 while the Memorandum of Appeal was filed on 26th November 2025 outside the prescribed statutory period. It is not disputed that the judgment appealed from was delivered on 23rd October 2025 while the Memorandum of Appeal was filed on 26th November 2025 which is three days outside the prescribed statutory period. 4. The court has considered the Memorandum of Appeal and notes that it raises substantive issues relating to ownership of the motor vehicle, proof of negligence, and the evidentiary value of the police abstract report. 5. In Equity Bank Limited v Neptune Credit Management Limited [2016] KECA 385 (KLR), the Court of Appeal emphasized that courts should adopt a purposive approach guided by the overriding objective and Article 159(2)(d) of the Constitution so as to facilitate substantive determination of disputes rather than terminate proceedings on procedural lapses.
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6. The delay complained of in the present matter was three days. In those circumstances, the court is not persuaded that the interests of justice would be served by summarily terminating the appeal on account of the procedural lapse complained of. 7. Consequently, the Notice of Motion dated 08 th 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 May 2026 21st DAY OF WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda For Appellant/Applicant - Mr. Sagwa for C.R.Sagwa & Co. Advocates For Respondent Omwoyo & Co. Advocates - Mr. Omwoyo for Moerwa
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