https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11488

# REPUBLIC OF KENYA **IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS** **CIVIL APPEAL NO. E1235 OF 2025** SAID MOHAMED ADAN APPELLANT -VERSUS- KENYA COMMERCIAL BANK LTD RESPONDENT (*Being an application to strike out the Memorandum of Appeal dated 27th November 2025 against the decision of the Chief Magistrate Court at Milimani dated 15th October 2025 by Honourable K.* *D. Ole Keiwua in Milimani CMCC No. 866 of 2019.*) # RULING 1. Before the Court is a Notice of Motion dated 22nd January 2026, by Kenya Commercial Bank (the respondent/applicant), expressed to be brought pursuant to sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act and Order 51 Rule 1, Order 50 Rule 6 of the Civil Procedure Rules. The respondent/applicant seeks for orders: 1. That the memorandum of appeal filed on 28th November 2025 by the appellant/respondent be struck out for being filed out of time without leave of the court; and 2. The costs of this application and the appeal be awarded to the appellant/respondent. Said Mohamed Adan is the appellant/respondent herein. 1. The application is premised on the grounds that the memorandum of appeal filed on 28th November 2025 was outside the period prescribed in section 79G of the Civil Procedure Act as the statutory period commenced on 16th October 2025 and lapsed on 14th November 2025. The appellant/respondent filed the appeal 14 days late without seeking or obtaining leave to file the appeal out of time. The application is supported by the affidavit of Bonnie Okuku who depones the same. 1. The application is opposed through a Replying Affidavit sworn by Said Mohamed Adan on 10th April 2026. Both parties then filed submissions. # Submissions by Counsel 1. In the submissions dated 28th April 2026, counsel for the respondent/applicant submits that the memorandum of appeal before the court is fatally defective and a nullity, having been filed outside the statutory period of 30 days without leave of court. Counsel also states that section 79G of the Civil Procedure Act only permits deduction in computing statutory days for filing an appeal where the lower court certifies that additional time was required for preparation and delivery of a copy of the decree. 2. Counsel relies on *Michael Kyule v Patrick Gitaari [2024] KEHC 5819 (KLR); County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR; Chase Bank* *(K) Limited v Coninx Industries Limited [2021] eKLR; Daniel Githuka Gicharu v Kiptum Koimet [2020] eKLR* to emphasize the importance of adhering to the rules of filing an appeal to the High Court and what is expected of the appellant should there be a delay. 1. In opposing the application, counsel for the appellant/respondent submits through their written submissions dated 11th May 2026, that there is a contradiction in interpretation of statutory time for filing an appeal. Counsel states that according to section 79G of the Civil Procedure Act, statutory time for appeal runs from the date of the decree, while the respondent/applicant relied on Order 21 Rule 8(1) of the Civil Procedure Rules which implies that it runs from the date of judgement. 2. Counsel relies on *Elijah Njagi & another v Yvonne Ndunge [2021] KEHC 4758 (KLR); Samuel Kamau Macharia & Anor v Oceanfreight Transport Company Limited [2014] eKLR* to emphasize that the provisions of section 79G of the Civil Procedure Act takes precedence thus, the memorandum of appeal was filed well within time if timed from the date of the decree which was 31st October 2025. 3. Further reliance is placed on *Hajar Services Limited v Peter Njagi Mwita 2020 KEHC 4652 (KLR)* where it was held that the court can exercise discretionary power to admit an appeal out of time where sufficient reason is given. Counsel submits that 14 days delay is not inordinate and that the appeal should not fail because of this. # Determination 1. Having considered the application, replying affidavit, parties’ submissions, authorities cited, and the law, the issue in contention is whether under the circumstances raised, the memorandum of appeal filed on 28th November 2025 ought to be struck out for being filed out of time. 2. Section 79G of the Civil Procedure Act governs the filing of appeals from the subordinate courts to the High Court. It provides that: # “Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: **Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”** 1. To read this section in totality, this Court must consider the definition of a decree in Section 2 of the Civil Procedure Act, which in the context of an appeal, includes a judgement. From the wording of section 79G, the computation of the 30 days will only exclude time that the lower court certifies as necessary for preparing a copy of the decree. In event that the 30 days lapse, the appeal can only be admitted if there is *“good and sufficient cause”* which is best demonstrated through a separate application for extension of time. 1. In the present case, the trial court’s judgement was delivered on 15th October 2025. Counsel for the appellant/respondent promptly applied for a certified copy of the judgement, typed proceedings and a certified copy of the decree on 16th October 2025 in order to prepare for the appeal. These documents were received on 31st October 2025 which was well within the statutory period. Despite this, the memorandum of appeal was not filed until 28th November 2025. Critically, there is no evidence that the appellant/respondent sought or obtained a certificate of delay to account for time taken to obtain the copy of the decree from the lower court, neither did they file an application for extension of time before this Court. 2. The Supreme Court in ***Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya [2022] KESC 16 (KLR)*** observed that in defining what length of delay qualifies to be inordinate, ‘time’ is a relative and subjective concept, and that in the context of judicial processes, the principal issue may not be the extent of delay, but its reasonableness and justification for it. 3. In this instance, I am persuaded by the argument that the appellant/respondent has offered no proper justification for the delay other than claiming the delay is not inordinate. The appellant/respondent did not fully rely on the procedure provided under section 79G of the Civil Procedure Act. Consequently, the Court cannot purport to remedy an illegality based on clear disregard of mandatory statutory timelines in the absence of a proper application. 4. By parity of reasoning, in the circumstances of this application, the Notice of Motion dated 22nd January 2026 is merited. The Memorandum of Appeal dated 27th November 2025 is hereby struck out with costs to the respondent/applicant. **DATED**, **SIGNED** and **DELIVERED** at **NAIROBI** this 23RD day of JULY 2026. ……………………….……………………………… # E.K. OGOLA JUDGE In the presence of: M/S Cheruiyot for the Respondent/Applicant. for the Appellant/Respondent. Gisielle Muthoni, Court Assistant.