Tome & another v Tome & 2 others (Civil Appeal (Application) E359 of 2023) [2026] KECA 107 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that delays in filing written submissions cannot get an appeal thrown out, protecting appellants from dismissal for want of prosecution.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether failure or delay by the appellants in filing written submissions constitutes a ground for dismissal of the appeal for want of prosecution
- 2.Whether the stay of execution orders granted by the High Court on 17th December 2015 should be vacated
- 3.Whether the Civil Procedure Act and its Rules are the applicable framework for the operations and functions of the Court of Appeal
Key legal issues
#Whether delay in filing written submissions warrants dismissal of an appeal for want of prosecution
No. The Court endorsed and adopted its earlier holding in Airtel Networks Kenya Limited v Nyutu Agrovet Limited that written submissions are neither obligatory nor a prerequisite to the hearing of an appeal, and that delay in filing them does not prejudice the expeditious hearing nor amount to want of prosecution justifying dismissal.
The Court relied on its prior decision in Airtel Networks Kenya Limited v Nyutu Agrovet Limited, which considered a similar application. Under Rules 100 and 104(d) of the Court's Rules, written submissions are not mandatory; a party may elect to make oral submissions at the hearing. The Court held as a fact that the delay in filing submissions did not prejudice the expeditious hearing of the appeal and therefore could not justify dismissal. The appellants' failure to respond by affidavit did not alter this outcome, as the respondents' premise was legally wrong.
Whether the Civil Procedure Act and Rules apply to the Court of Appeal's operations
No. The Court held that its operations, including listing of appeals and applications, are guided by the Appellate Jurisdiction Act and the Court of Appeal Rules, 2022, and that the Civil Procedure Act and Rules provisions invoked by the respondents are not relevant.
The respondents founded their application on section 3A of the Civil Procedure Act and Order 42 rule 35(2) of the Civil Procedure Rules, alongside the Court's own rules. The Court clarified at the threshold that, save where otherwise stated, the Civil Procedure Act and Rules do not guide its operations. This rendered the Civil Procedure-based anchors of the application inapplicable, leaving only the Court's own Rules and the Appellate Jurisdiction Act.
Legal principles established
#- Failure or delay in filing written submissions is not a ground for dismissal of an appeal for want of prosecution in the Court of Appeal, because written submissions are neither obligatory nor a prerequisite to the hearing of an appeal.
- The operations and functions of the Court of Appeal, including listing of appeals and applications, are governed by the Appellate Jurisdiction Act and the Court of Appeal Rules, 2022, not the Civil Procedure Act and Rules, except where otherwise stated.
Court orders
#- 1.Dismissal of the respondents' application dated 1st October 2025
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Appellate Jurisdiction Act; rule 49 of the Court of Appeal Rules, 2022; section 3A and 3B of the Appellate Jurisdiction Act
Relief refused
#Dismissal/striking out of the appeal for want of prosecution
Written submissions are neither obligatory nor a prerequisite to hearing; delay in filing them does not amount to want of prosecution
Vacation of the stay of execution orders granted by the High Court on 17th December 2015
The application as a whole was dismissed following the endorsement of the Airtel Networks v Nyutu Agrovet finding
Costs
We make no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
written submissions are neither obligatory nor a prerequisite to the hearing and determination of an appeal under the Act and the Rules.
We fully endorse the above finding and adopt it entirely in this application. Consequently, we hereby dismiss this application. We make no order as to costs.
the operations and functions of this Court, including the listing of appeals and applications for hearing, are not guided by the provisions of the Civil Procedure Act and the Rules made thereunder, except where otherwise stated.
Furthermore, it is acceptable, as a matter of practice of this Court, for a party to elect to make oral submissions in person or by counsel at the hearing.
Issues in the judgment
#The judgment does not state the appeal number or neutral citation of the appeal in which this application was brought, so the case is identifiable only by description.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tome & another v Tome & 2 others (Civil Appeal (Application) E359 of 2023) [2026] KECA 107 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/107/eng@2026-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.