https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8672

Kamau & another v Kimani (Civil Appeal E06 of 2024) [2026] KEHC 8672 (KLR) (Civ) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8672 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E06 of 2024 BW Murunga, J June 18, 2026 Between James Mwangi Kamau 1st Appellant Richard Mwangi 2nd Appellant and George Kariuki Kimani Respondent (Being an appeal from the judgment and decree of the Chief Magistrate's Court at Milimani Commercial Courts in Civil Suit No. E1108 of 2022 delivered on 29th September 2023 by Hon. I. Ruguru, Senior Principal Magistrate) Judgment 1.This Appeal arises from the judgment and decree of the Senior Principal Magistrate, Hon. I. Ruguru, delivered on 29th September 2023 in Milimani CMCC Civil Suit No. E1108 of 2022. 2.In the impugned judgment, the trial court found the Appellants 100% liable for a motor vehicle accident that occurred on 20th July 2021 along Mukoma Road, South B, and subsequently awarded the Respondent general damages of Kshs. 450,000/= and special damages of Kshs. 17,050/= together with interest and costs. 3.Dissatisfied with the quantum awarded by the trial court, the Appellants filed a Memorandum of Appeal dated 22nd December 2023 on 3rd January 2024, followed by a Record of Appeal dated 10th February 2024. The Appellants sought orders from this Court to set aside the trial court's award on quantum and stay the execution of the lower court's decree. 4.Before considering the merits of the appeal, this Court must address a fundamental procedural and jurisdictional hurdle raised by the Respondent in his written submissions dated 20th May 2026. The Respondent contends that this present Appeal is incompetent, bad in law, and that this Court is functus officio, as the matter was conclusively dismissed by Hon. Justice Linus P. Kassan on 6th February 2025. 5.The record indicates that the lower court’s judgment was delivered on 29th September 2023. Under Section 79G of the Civil Procedure Act (Cap 21), an appeal from a subordinate court to the High Court must be filed within thirty (30) days from the date of the decree or order appealed against. The statutory period for filing this appeal lapsed on or about 30th October 2023. The Appellants did not file their appeal within the statutory timeline. 6.Recognizing this delay, the Appellants preferred High Court Miscellaneous Application No. E1007 of 2023, seeking leave to file their Memorandum of Appeal out of time and a stay of execution. 7.On 2nd November 2023, this Court granted a temporary stay of execution on condition that the entire decretal sum be deposited in court. 8.On 22nd December 2023, the stay was extended on condition that the Appellants deposit the full decretal sum into a joint fixed interest-earning account in the names of both law firms within forty-five (45) days. 9.However, while High Court Miscellaneous Application No. E1007 of 2023 was still pending determination and without obtaining the mandatory leave of the Court to file an appeal out of time, the Appellants proceeded to file the Memorandum of Appeal on 3rd January 2024 and the Record of Appeal on 12th February 2024. 10.The Court record and Case Tracking System (CTS) details reveal that despite multiple opportunities for compliance and extensions granted on 15th February 2024, 26th March 2024, 15th April 2024, 9th May 2024, 24th May 2024, 11th June 2024, 13th June 2024, 20th June 2024, and 15th October 2024, the Appellants entirely failed to comply with the conditional stay orders. Consequently, the matter was listed for a Notice to Show Cause on 20th November 2024, where one final opportunity to comply was granted by Justice Linus P. Kassan. 11.On 6th February 2025, when the matter came up for mention to confirm compliance, there was no appearance on behalf of the Appellants. Accordingly, Hon. Justice Linus P. Kassan dismissed the matter with costs to the Respondent due to non-compliance and non-attendance. Legal Analysis and Determination 12.It is an immutable rule of law that statutory timelines are not mere technicalities but are jurisdictional in nature. In the locus classicus case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the Supreme Court of Kenya firmly established that timelines set by statutes or rules of the court are strictly to be adhered to, and any party seeking an extension must successfully apply for and obtain leave from the court before taking the subsequent step. 13.Filing a Memorandum of Appeal and a Record of Appeal out of time without first securing leave renders the entire appeal a nullity ab initio. In City Chemist (Nairobi) & another v Oriental Commercial Bank Limited [2020] eKLR, the Court of Appeal re-emphasized that a clear breach of statutory timelines without a subsisting order for extension strips the court of the legal capacity to entertain the document so filed. 14.In the present case, the Appellants preempted the decision of the Court in High Court Miscellaneous Application No. E1007 of 2023 by filing the appeal documents while their application for leave was still pending. Worse still, that application was eventually dismissed with costs by Hon. Justice Kassan on 6th February 2025. The dismissal of the application for leave automatically dissolved any legal substratum upon which Civil Appeal No. E06 of 2024 could possibly rest. 15.Furthermore, this Court must uphold the doctrine of functus officio. As stated by the Court of Appeal in Jersey Island Boutique Limited v Jackson Maina & another [2021] eKLR, once a court of competent jurisdiction has conclusively determined and pronounced itself on an issue or dismissed a cause, it exhausts its mandate over that specific subject matter and cannot re-open the same unless through a proper statutory process of review or appeal. Hon. Justice Kassan’s dismissal order of 6th February 2025 effectively brought this litigation to an end. 16.Consequently, there is no competent or viable appeal pending before this Court for determination on the merits. Final Orders 17.In the upshot, this Court finds the Respondent’s preliminary objection entirely sound and meritorious. Accordingly, the Appeal is dismissed with costs of this appeal awarded to the RespondentsIt is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE 2026.BENARD MURUNGA WAFULAJUDGEIn the presence of:Ms Okello for the AppellantMs Owino for the RespondentKevin Babu - Court Assistant