https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8624

County Glimagals Ltd & another v Butere Technical and VocationalCollege (Civil Appeal E171 & E174 of 2023 (Consolidated)) [2026] KEHC 8624 (KLR) (15 June 2026) (Ruling) Neutral citation: [2026] KEHC 8624 (KLR) Republic of Kenya In the High Court at Kakamega Civil Appeal E171 & E174 of 2023 (Consolidated) S Mbungi, J June 15, 2026 Between County Glimagals Limited 1st Appellant Omunyasia Enterprises Limited 2nd Appellant and Butere Technical and Vocational College Respondent Ruling 1.This appeals arises from the judgment of the Small Claims Court at Kakamega in Small Claims Civil Suit No. 385 of 2023 delivered on 6th October 2023 by Hon. C. Cheruiyot (RM). 2.Aggrieved by the said decision, the Appellants in E171 and 174 lodged a Memorandum of Appeals dated 6th November 2023 and filed on 10th November 2023. 3.Subsequently, the Respondent raised a Preliminary Objection dated 29th November 2024 contending that the appeals were filed outside the statutory period prescribed under Section 79G of the Civil Procedure Act and without leave of the Court. The Respondent therefore urged the Court to strike out the appeals for want of jurisdiction. 4.Despite being afforded an opportunity to respond, the Appellants did not file submissions in opposition to the Preliminary Objection. The Court further notes that counsel for the Appellants filed an application dated 12th March 2025 indicating that he had been unable to trace the Appellants and consequently lacked sufficient instructions to continue prosecuting the appeals. Issues For Determination 5.Having considered the Record of Appeals, the Preliminary Objection dated 29th November 2024 and the Respondent’s submissions, the Court is of the view that the following issues arise for determination:a.Whether the Preliminary Objection raises a pure point of law.b.Whether the appeals was filed within the time prescribed by law.c.Whether this Court has jurisdiction to entertain the appeals.d.What orders ought to issue. Analysis And Determination a. Whether the Preliminary Objection raises a pure point of law 6.The law regarding preliminary objections is settled In the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the Court held that a preliminary objection consists of a pure point of law which, if argued successfully, may dispose of the suit. 7.The Respondent’s objection is founded on the contention that the appeals were filed outside the statutory period prescribed by law and without leave of the Court. 8.The impugned judgment was delivered on 6th October 2023.Pursuant to Section 79G of the Civil Procedure Act, the Appellants was required to lodge the appeals within 30 days. The thirtieth day fell on 5th November 2023, which was a Sunday. 9.Consequently, the period for filing the appeals extended to 6th November 2023, the next working day. The memorandum of appeals were however filed on 10th November 2023, four (4) days after the lapse of the statutory period. 10.No leave to file the appeals out of time was sought or obtained. The appeals were therefore filed out of time and is incompetent. 11.The objection is therefore based on the court record and raises a pure question of law touching on jurisdiction. The Court is satisfied that the objection is properly taken. b. Whether the appeals was filed within the time prescribed by law 12.The appeals arises from the judgment of the Small Claims Court delivered on 6th October 2023. 13.Section 38(1) of the Small Claims Court Act grants a right of appeals to the High Court on matters of law. However, the exercise of that right must be in accordance with the applicable procedural law governing appeals to the High Court. 14.Section 79G of the Civil Procedure Act provides that every appeals from a subordinate court to the High Court shall be filed within thirty days from the date of the decree or order appealsed against. The proviso thereto empowers the Court to admit an appeals out of time where sufficient cause is shown. 15.The record shows that the impugned judgment was delivered on 6th October 2023 while the Memorandum of Appeals was filed on 10th November 2023. 16.No certificate of delay was obtained. More importantly, no application seeking enlargement of time was filed before or after lodging the appeals. The Appellants therefore failed to invoke the proviso to Section 79G of the Civil Procedure Act. 17.In Paul Njage Njeru(2021)eKLR, the Court observed that filing a memorandum of appeals does not depend on the availability of typed proceedings and that an intending Appellants is expected to lodge the appeals within the prescribed time and seek amendments later if necessary. 18.The Court agrees with that reasoning, nothing prevented the Appellants from lodging a competent appeals within the statutory period or from seeking leave to file the appeals out of time. 19.The Court therefore finds that the appeals were filed outside the period prescribed under Section 79G of the Civil Procedure Act and without leave of the Court. c. Whether this Court has jurisdiction to entertain the appeals 20.Jurisdiction is the lifeblood of every judicial proceeding In the case of Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd, the court stated that:“Jurisdiction is everything. Without it, a court has no power to make one more step.” 21.Similarly, the Supreme Court in Samuel Kamau Macharia(2012)eKLR affirmed that a court’s jurisdiction flows from the Constitution or statute and cannot be assumed or expanded by judicial craft. 22.The Court of Appeals in Anaclet Kalia Musau V Attorney General & 2 Other{2020}eKLR reiterated that where proceedings are commenced outside a statutory timeline without leave, the court lacks jurisdiction to entertain the matter. 23.Having found that the appeals were lodged outside the statutory period and without leave, this Court finds that there are no competent appeals before it. Consequently, the Court lacks jurisdiction to entertain the appeals or to delve into the substantive grounds contained in the Memorandum of Appeals. 24.The Court also notes that the Appellants did not file submissions opposing the Preliminary Objection. Further, counsel for the Appellants filed an application dated 12th March 2025 indicating that he had been unable to obtain instructions from the Appellants. While the failure to prosecute the appeals is not the basis of this determination, it underscores the absence of any effort by the Appellants to regularize the appeals. 25.The Court finds that:a.The Preliminary Objection dated 29th November 2024 is properly taken.b.The appeals was filed outside the statutory period prescribed under Section 79G of the Civil Procedure Act.c.No leave was sought or obtained to file the appeals out of time.d.Consequently, this Court lacks jurisdiction to entertain the appeals. 26.Accordingly, the Preliminary Objection dated 29th November 2024 is upheld. 27.The appeals are hereby struck out with costs to the Respondent. 28.Right of Appeal 30 days explained. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 15TH DAY OF JUNE, 2026.S.MBUNGIJUDGEIn the presence of:-CA: Zildah/VelmaMr. Were holding brief for Timothy for the Respondent present.Appellants absent.