Simon Gachoki Munyi v Alice Nyawira Mwangi & 1 other

The court held that despite the appellant being ordered to file and serve the record of appeal within 21 days, he neglected to comply, stalling the appellate process. The delay of nearly three years without leave or explanation constituted an abuse of process. Section 3A preserves the court's inherent power to make orders necessary for the ends of justice and to prevent abuse of process, and the overriding objective permits courts to weed out unacceptable delay.

The court applied the test from Ivita v Kyumba: whether the delay is prolonged and inexcusable, and whether justice can be done despite the delay. The appellant offered only his advocate's 'accidental oversight' as explanation, with no affidavit from the advocate accepting responsibility nor material showing the client had prompted the advocate. Parties must follow up their own litigation; the judge properly found the delay inordinate and unexplained, and the second appellate court had no basis to interfere with that discretion.

Relying on Bwana Mohamed Bwana, Patrick Kiruja Kithinji and Munir Abubakar Masoud, the court noted that without a record of appeal a court cannot determine an appeal, that an appeal filed out of time without leave is incompetent and that lateness is not curable under Article 159. The appellant filed the record nearly three years late without leave, so the appeal was susceptible to striking out.