Julius Kipkeny Kolil & another v Nancy Waithera Kiruri

Applicant. The affidavit restates more or less the grounds in support and I see no useful reason to rehash the same. 3. The Appellants filed their replying affidavit sworn on the 26 th November 2025 by their advocate Joel Kimutai Bosek.He deponed that the failure to file the appeal within time was occasioned to the fact that they had requested for certified copies of proceedings from the court which took time and without the proceedings they could not have filed a memorandum of appeal. 4. That the delay was not beyond the Appellants’ control and the Applicant failing to indicate what prejudice will be occasioned to them, then the memorandum of appeal should not be struck out. 5. The application was canvassed by way of written submissions with only the Appellants/Respondent filing submissions dated 6 th July 2026 6. They submitted that as per Section 79 G the time that is taken from the time judgement is issued until the delivery of the decree, typed proceedings to the Appellants should not be included in the computing of time pointing out to the fact that the time in the certificate of delay should therefore not be considered and as such the memorandum of appeal was filed within time. ELCLA E220 OF 2025 R 2

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Counsel submitted that this was good and sufficient cause for failing to file the appeal within time relying in the case of Vallabhdas Damoda t/a D. Jamnadas & Sons -Vs- Ismail & Misando, court of appeal for Eastern Africa at Nairobi, Civil Appeal number 21 of 1975 (unreported). Counsel also submitted that striking out the appeal would be prejudicial to the Appellants as it would be an extreme measure considering the Respondent will not be prejudiced should the appeal be allowed. Analysis and determination 7. Upon considering the Application, the replying affidavit and the filed submissions the only issues for determination is Whether the notice of motion application is merited and by extension whether the appeal is properly before this court 8. It is common ground that the impugned ruling was delivered on 11th January 2024 and that the Memorandum of Appeal was filed on 22nd October 2025. The certificate of delay indicates a delay of 341 days. 9. Section 79G of the Civil Procedure Act provides the 30-day timeline for filing an appeal. The Respondent contended that the 341-day delay was well outside the statutory limit. I wish to rely on the Supreme Court authority in Nicholas Kiptoo Arap Korir Salat ELCLA E220 OF 2025 -Vs- Independent R Electoral and Boundaries 3

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Commission & 7 others [2014] eKLR . That case established that the timely filing of an appeal is not a procedural technicality but a fundamental step. Essentially, an appeal filed out of time, without a valid order (leave) extending time, is a nullity. In the case the learned Supreme Court Judges approvingly made reference to the decision of the Supreme Court of California in the case of Silverbrand -Vs- County of Los Angeles [2009] 46 Cal. 4th 106 where the following was said; “As noted by the Court of Appeal, the filing of a timely notice of appeal is a jurisdictional prerequisite. Unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal.”(Sic) The purpose of this requirement is to promote the finality of judgements by forcing the losing party to take an appeal expeditiously or not at all.” 10. The Appellant herein has not acknowledged the delay of 14 months from when the ruling was delivered to when they requested for certified copies of proceedings. The only delay the Appellant are relying on is from when the request for proceedings was lodged to when the certificate of delay was issued attributing it to the courts .Based on this, they have ELCLA E220 OF 2025 R 4

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urged this Court to invoke its inherent jurisdiction.However, this Court is cautious to note that the inherent jurisdiction contemplated under Section 3A cannot be invoked to override an express statutory provision of Section 79G of the Civil Procedure Act. A time limit for filing an appeal set by a statute is not a mere procedural technicality. It is a substantive and mandatory requirement that goes to the very root of a court’s authority to hear the matter. In this Court’s assessment, the proper procedure was for the Appellant to seek orders for leave to enlarge time to lodge the appeal and lay a basis to the satisfaction of this Court why discretion to extend time should be exercised in its favour. 11. The ruling in the subordinate court was delivered on the 11th January 2024, the Appellants wrote letters to the court requesting for typed proceedings on the 3rd March 2025 a period of more than 12 months which delay has not been explained. This is the delay that the court is looking at, the explanation given does not explain the delay in filing the memorandum of appeal as certification of proceedings does not affect filing of appeal. Before the court there was no leave sought to file the appeal out of time. The court upholds reiterates Supreme Court's decisionon in Nick salat case (supra) in support of the principle that an appeal filed out of time and without leave of ELCLA E220 OF 2025 R 5

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court, renders such a document a nullity and of no legal consequence. A litigant must not take it for granted that a Court will as a matter of right extend time without laying a basis. In Michael Kinyanjui Mbuthia -Vs- John Kamau Nganga HCCA 322 of 2008, the Court was categorical that an appeal filed out of time could only be deemed duly filed if leave of Court is sought to that effect. 12. Therefore, in absence of such an application for leave to file appeal out of time, having been filed 341 days after judgment without any sufficient explanation the memorandum of appeal, is fatally defective. The delay, of 14 months without any reason, is indicative of lack of diligence and is an abuse of Court process. in Nicholas Following Kiptoo Arap the Supreme Korir Salat Court -Vs- decision IEBC & 7 others (supra), this Court must find that the 22nd October 2025, is a nullity and of no legal effect. 13. This therefore follows that’s memorandum of appeal and entire record of appeal is struck off the record. Final disposition i. Consequently, I find that the Notice of Motion application dated 24th October 2025 is merited. ELCLA E220 OF 2025 R 6

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ii. The Memorandum of Appeal dated 22nd October 2025, having been filed out of the statutory time limit without leave of the Court, is incompetent and a nullity and is hereby struck out. iii. Costs to the Respondent. It is so ordered. DATED, SIGNED and DELIVERED virtually at NAIROBI on this 24th day of September 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Ms. Chepkorir for the Appellants Mr. Oguttu for the Respondent/Applicant Ms. Mwangi Court Assistant ELCLA E220 OF 2025 R 7

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