https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11072

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT KISUMU** **CIVIL APPEAL NO. E126 OF 2025** **ALEX ODHIAMBO ABOK ….…………………………………………….………. APPELLANT** **-VERSUS-** **VIVIAN AKINYI OTIENO & HELLEN AKINYI OTIENO (Suing as the Legal Representatives of the Estate of CALVINCE OTIEN OLANG (DECEASED) …………………………………………………………………….... RESPONDENTS** *(Being an appeal from the judgment/decree of the Honourable Ednah Angima (SRM) delivered on 23/04/2025 in Nyando SPMCC No. E227 of 2022)* **JUDGMENT** **Background** 1. The Respondents (Plaintiffs in the Lower Court) had filed a suit in the Magistrates Court being Nyando SPMCC No. E227 of 2022 by way of an amended Plaint dated 30th August 2023 seeking the following: 2. General damages 3. Special damages at Kshs. 73,550/- 4. Costs of the suit. 5. Interest at court rates. 6. According to the amended Plaint, on 14th December 2020, the deceased was carefully cycling on the left verge of the road along the Katito-Kendu Bay Road and at Nyadero area motor vehicle registration number KCG 957H, owned by the Appellant, was carelessly and recklessly driven, lost control and knocked the deceased down from behind, causing him to sustain fatal injuries. As a result, his estate and dependants have suffered loss and damages. The deceased was aged 29 years at the time of his demise working as a cleaner employed by Dechrip East Africa Limited, earning a monthly salary of Kshs. 10,600/- which he used to support his dependants and that he was enjoying good health with a promising future. 7. On 30th November 2022, the Appellant filed his defence denying negligence as particularised in the amended Plaint, while blaming the deceased for the accident, the particulars of the deceased’s negligence being in Paragraph 8 of the defence. The Respondents called four witnesses, produced documents to support their claim and closed their case, while the Appellant closed his case without calling any witness. 8. The trial court found the Appellant 100% liable for the accident and awarded the Respondent damages as follows: 9. Pain and suffering – Kshs. 50,000/- 10. Loss of Expectation of Life – Kshs. 100,000/- 11. Loss of Dependency – Kshs. 2, 628, 800/- (10, 600 × 12 × 31 × 2/3) 12. Special damages – Kshs. 65,550/- Total award – Kshs. 2,844,350/- plus costs of the suit and interest on the award at court rates from the date of judgment until payment in full. **The Appeal** 1. Before this Court is the Memorandum of Appeal dated 22nd May 2025, in which the Appellant outlines the grounds of appeal which can be summarised as follows: 2. Whether the trial court erred in holding the Appellant herein 100% liable. 3. Whether the trial court erred in awarding the Respondents herein damages of Kshs. 2,844,350/- 4. The parties agreed to canvass the appeal by way of written submissions. **The Appellant’s Submissions** 1. In his submissions dated 20th March 2026, the Appellant submitted that PW2, Henry Gumba testified as an eye witness in the matter and blamed the driver of the motor vehicle registration number KCG 957H for the accident. It is his further submission that the witness testified that being the deceased’s childhood friend, he would not have testified against him had he been on the wrong. The Appellant further submitted that the witness’’s account of the accident is biased and as such, should be treated with extreme caution or expunged from the court record. 2. The Appellant further submitted that the Police Officer testified that the matter was pending under investigation and the Appellant’s driver was not blamed for the accident. There was no evidence on the point of impact, neither was the driver charged in court. It is therefore the Appellant’s submission that the learned magistrate erred when she failed to appreciate that all the evidence before court did not point negligence at the driver of the Appellant’s motor vehicle. Consequently, the learned magistrate erred in law and fact in holding the Appellant 100% liable for the accident when the evidence clearly showed otherwise. 3. It is also their submission that the mere fact that the accident occurred and the deceased was injured does not qualify as proof of negligence against the Appellant. 4. Regarding the award for general damages, the Appellant submitted that it was unnecessary to assess damages on loss of dependency since the Respondents failed to prove their case on a balance of probabilities. While acknowledging that the court has judicial discretion in assessing damages, it is the Appellant’s submission that no material evidence was placed before court in proof of the deceased’s income. It is his submission that the court should have used the minimum wage as submitted by the Appellant, which is Kshs. 7, 240/- as per the Regulation of Wages (General Amendment Order) 2018. The Appellant relied on **Roger Dainty v Mwinyi Omar Haji & another [2004] KECA 147 (KLR).** 5. The Appellants submitted that the learned magistrate erred in applying a multiplier of 31 years, therefore failing to consider the vagaries of life. It is his submission that a multiplier of 20 years is adequate under this head. He relied on **South Sioux Farms Ltd & 2 others v Selina Robi Mwita (suing as legal representative of the Estate of the Late Julius Bonare Chacha [2021] KEHC 8580 (KLR).** It is his further submission that an award of damages is an exercise of discretion of the trial court but the same should be within the limits set out in decided case law and must not be inordinately so low or so high as to reflect an erroneous figure. It is his argument that the award must also take into account the prevailing economic environment, thus Kshs. 1,158,400/- is a reasonable award for loss of dependency (20× 12× 2/3× 7,240). **The Respondents’ Submissions** 1. In their written submissions dated 11th May 2026, the Respondents oppose the appeal for various reasons. 2. First, it is their submission that the appeal should be struck out for being filed out of time and without leave of court. They argue that the appeal was filed on 27th May 2025, while the judgment of the trial court was delivered on 23rd April 2025. The Appellant was required to file the appeal within 30 days from 23rd April 2025. They further submitted that since the appeal was filed 4 days out of time, the Appellant ought to have sought leave of court. As a result, the appeal is incurably defective and should be struck out with costs to the Respondents. They relied on Section **79G of the Civil Procedure Act**, **Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KECA 782 (KLR)** and **Onyimbo v Kamanja [2026] KEHC 5746 (KLR).** 3. On the issue of liability, the Respondents submitted that their evidence against the Appellant was uncontroverted/unrebutted. The Appellant opted to close his case without evidence. The Respondents cited **Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu [2012] KEHC 3881 (KLR)** and **Embu Public Road Services Ltd -vs- Riimi (1968) EA 22** to support their argument. They urged the court to find that indeed the Appellant was 100% liable vicariously for the accident. 4. On the award for damages, the Respondents cited various authorities to support the award by the trial court and urged the court to dismiss the appeal with costs to themselves. **Analysis and Determination** 1. Before considering the substantive grounds of appeal, it is necessary to determine the issue raised by the Respondents regarding the competence of the appeal. In their written submissions, the Respondents contend that the impugned judgment was delivered on 23rd April 2025 whereas the Memorandum of Appeal was filed on 27th May 2025, outside the thirty-day period prescribed under **Section 79G of the Civil Procedure Act.** They further submit that the Appellant neither sought nor obtained leave to lodge the appeal out of time and consequently urge the Court to strike out the appeal. 2. The right of appeal from a subordinate court to the High Court is statutory and must therefore be exercised strictly within the framework established by statute. Section 79G of the Civil Procedure Act provides: "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. The effect of the provision is that an appeal filed outside the prescribed period is not properly before the Court unless time has first been enlarged pursuant to the proviso. 2. In determining whether an appeal has been filed within time, the Court must also have regard to the provisions governing computation of time. **Order 50 Rule 4 of the Civil Procedure Rules, 2010** provides that where the last day prescribed for doing an act falls on a Sunday or public holiday, the act may lawfully be done on the next succeeding day that is not a public holiday. Likewise, **Order 50 Rule 6** empowers the Court, where appropriate, to enlarge time fixed by the Rules or by an order of the Court. However, where time is prescribed by statute - as is the case under Section 79G of the Civil Procedure Act - the enlargement contemplated is that provided under the proviso to Section 79G itself, upon an application demonstrating good and sufficient cause for the delay. 3. The Court of Appeal has consistently maintained that where Parliament has prescribed a specific timeline for instituting an appeal, compliance is mandatory unless leave extending time has been obtained. In **Mae Properties Ltd v Joseph Kibe & Another [2017] eKLR**, the Court affirmed that an appeal lodged outside the statutory period without leave is incompetent, the requirement for enlargement of time being a substantive statutory requirement rather than a mere procedural technicality. 4. The Court of Appeal in **Gerald M'Limbine v Joseph Kangangi [2009] eKLR** held that where an appeal is filed outside the period stipulated under Section 79G without leave, the appeal is incompetent unless and until the High Court enlarges time under the proviso to that section. The Court observed that the proviso was enacted precisely to provide a mechanism through which an appellant may regularise an appeal lodged out of time upon demonstrating sufficient cause. The Court stated: "...the proviso to Section 79G is intended to allow a party who has failed to file an appeal within time to seek leave of the High Court to admit the appeal out of time upon showing good and sufficient cause. In the absence of such leave, the appeal is incompetent." 1. The principles governing extension of time were comprehensively set out by the Supreme Court in **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR**, where the Court held that extension of time is not a right but an equitable remedy granted at the discretion of the Court. The applicant bears the burden of laying a satisfactory basis for the exercise of that discretion, including explaining the delay to the satisfaction of the Court. The Court further cautioned that statutory timelines are not mere technicalities that may be disregarded at will. 2. Likewise, in **Aviation Cargo Support Limited v St. Mark Freight Services Limited [2014] eKLR**, the Court of Appeal held that the discretion to admit an appeal out of time is only exercisable upon a proper application under the proviso to Section 79G, and not as a matter of course. 3. I am equally mindful of **Article 159(2)(d) of the Constitution** and the overriding objective under **Sections 1A and 1B of the Civil Procedure Act**. Nevertheless, those provisions cannot be invoked to circumvent express statutory requirements. As the Supreme Court cautioned in **Nicholas Kiptoo Arap Korir Salat** (Supra), Article 159 was never intended to aid parties who disregard mandatory procedural prescriptions enacted by Parliament. 4. In the present appeal, the judgment appealed from was delivered on 23rd April 2025 while the Memorandum of Appeal was filed on 27th May 2025. There is nothing on the record before this Court to indicate that a certificate of delay was issued under Section 79G excluding any period required for preparation of the decree or order. Equally, there is no application seeking enlargement of time nor any order granting leave to admit the appeal out of time. The Appellant has also not offered any explanation for the delay. 5. In the absence of a certificate of delay, an order enlarging time or any explanation capable of bringing the appeal within the proviso to **Section 79G of the Civil Procedure Act**, I am constrained to find that the appeal was lodged outside the statutory period without leave of the Court. The appeal is therefore incompetent. 6. The appeal is hereby struck out with costs to the Respondents. **Dated, Signed and Delivered at Kisumu this 17TH day of July 2026** **HON. ALEX K. ITHUKU.** **JUDGE** **DELIVERED ELECTRONICALY** **Ms. Ogoga for the Appellant** **Ms. Aguko for the Respondent** **Mr. Gitonga - Court Assistant** **HON. ALEX K. ITHUKU.** **JUDGE**