Ogeto v Mogaka (Civil Appeal E076 of 2025) [2026] KEHC 13249 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 13249 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CIVIL APPEAL E076 OF 2025 TW CHERERE, J MAY 21, 2026 BETWEEN EVANS OGETO ........................................................................................ APPELLANT AND ALICE NYABETA MOGAKA ............................................................. RESPONDENT RULING 1. Before the Court is the Notice of Motion dated 08th December 2025 in which Alice Nyabeta Mogaka, the Respondent/Applicant seeks orders that that the Memorandum of Appeal dated 24th November 2025 and filed on 26th November 2025 be struck out for having been filed out of time and without leave of the Court. The Applicant depones that judgment was delivered on 23rd October 2025 and that the statutory period for filing the appeal lapsed on 23rd November 2025. 2. Evans Ogeto, the Appellant, by a Replying Affidavit sworn on 14th May 2026 opposes the application and states that the appeal raises serious and arguable issues of law and fact, that the delay in filing the appeal was neither intentional nor inordinate, and that the delay was occasioned by difficulties in obtaining the judgment. The Court has also considered the Memorandum of Appeal dated 24th November 2025 and notes that the Appellant raises several grounds challenging the findings of the trial court on liability, ownership of the motor vehicle, and the evidentiary value of the police abstract report. 3. There is no dispute that the appeal was filed outside the statutory period provided under Section 79G of the Civil Procedure Act. The delay, however, was only three days. There is no dispute that the appeal was lodged outside the period stipulated under Section 79G of the Civil Procedure Act. The delay, however, was only three days. 4. The applicable legal framework requires the court to balance procedural compliance against the broader obligation to facilitate substantive justice. Article 159(2)(d) of the Constitution and the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13249/eng@2026-05-21 1
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overriding objective under the Civil Procedure Act discourage the summary termination of proceedings where justice can still adequately be achieved. 5. In Kimani Muhoro v John Waiganjo Mbuthia & Mark Gituku Gichuhi [2013] KECA 419 (KLR), the Court of Appeal emphasized that courts exercising procedural discretion must ensure that the application of procedural rules complies with the oxygen principle and results in a just, fair, proportionate and expeditious determination of disputes. 6. The appeal before the court raises substantive complaints concerning liability, ownership of the motor vehicle, and the evidentiary value of the police abstract report. In the court’s assessment, the short delay complained of does not justify denying the Appellant an opportunity to prosecute the appeal on merit. 7. Further, no material prejudice has been demonstrated by the Applicant that would warrant striking out the appeal. 8. 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 21st DAY OF May 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda For Appellant/Applicant - Mr. Sagwa for C.R.Sagwa & Co. Advocates For Respondent - Mr. Omwoyo for Moerwa Omwoyo & Co. Advocates https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13249/eng@2026-05-21 2
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