https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10737

Kamunya & another (Suing as the Administrators of the Estate of Julius Mwangi Muchiri) v Gitari (Civil Appeal E074 of 2022) [2026] KEHC 10737 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 10737 (KLR) Republic of Kenya In the High Court at Kerugoya Civil Appeal E074 of 2022 EM Muriithi, J May 14, 2026 Between Stephen Muchiri Kamunya 1st Appellant Hildah Wangari Thuo 2nd Appellant Suing as the Administrators of the Estate of Julius Mwangi Muchiri and Everlyn Kawira Gitari Respondent Ruling 1.By a Notice of Motion dated 8th January, 2026 brought under Sections 1A & 3A of the Civil Procedure Act and other enabling provisions of the law, the Respondent seeks that: 1.The Supplementary Record Of Appeal dated 03/11/2025 (filed on 03/11/2025) be struck out/expunged from the Court record having been filed out of time contrary to the Court directions given on 03/07/2025. 2.The costs of this Application be awarded to the Respondent. 2.The grounds upon which the application is premised are set out in the body of the application and supporting affidavit of Andrew Nduva Kitonga, the Respondent’s advocate, sworn on even date. He avers that on 03/07/2025, the Appellants were granted 30 days to file a Supplementary Record of Appeal, however the same was filed on 3/11/2025 outside the 3 months of the court-sanctioned timeline. The decree was issued on 1/8/2025 before the expiry of the 30 days period given to the Appellants, and their conduct is a deliberate disregard of the directions of 3/7/2025. 3.The Appellants have opposed the application vide their replying affidavit sworn by Anthony Mugo Gichuki, their advocate on 8/1/2026. He avers that when this matter came up on 4/11/2025, he proffered an explanation for the late filing of the Supplementary record and prayed for it to be admitted out of time. Counsel for the Respondent did not oppose the request but sought time to peruse the record before taking directions on the hearing and disposal of the Appeal. He verily believes that the court admitted the Supplementary record, and the application is an afterthought which has been overtaken by events. They obtained a copy of the decree on 30/10/2025 and proceeded to file the supplementary record, and the Respondent will not suffer any prejudice as the Supplementary record contains the decree only. Submissions 4.The Appellants maintain that the application is overtaken by events, given the directions of 4/11/2025. They urge the court to exercise its discretion in their favour by admitting the Supplementary record of Appeal. They urge that Order 42 of the Civil Procedure Rules does not provide for the striking out of a Record of Appeal including the Supplementary Record. They urge that Order Rule 13 (f) of the Civil Procedure Rules is couched using the disjunctive conjunction “or” thus, it sufficient if a party files either the judgment, order or the decree, and cite Elizanya Investments Limited v Lean Energy Solutions [2021] KEHC 8495 (KLR). They contend that no prejudice will be suffered by the Respondent, as the impugned judgment had already been filed. 5.The Respondent faults the Appellants for filing their intended Supplementary Record of Appeal on 3/11/2025 long after the 30 days’ period granted by the court had lapsed. She urges that the Appellants’ conduct is a deliberate disregard of the Court directions issued on 3/07/2025 and offends the provisions of section 1A and 3 of the Civil Procedure Act, and cites B v Attorney General [2004] 1 KLR 4 31, Raila Odinga & 5 Others v IEBC & 3 Others Petition No 5 of 2013 (Consolidated)) [2013] KESC 6 (KLR) (16 April 2013) (Judgment) and Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others [2013] eKLR. Analysis and Determination 6.The issue for determination is whether the supplementary record of appeal ought to be struck out. 7.On 3/7/2025, the Appellants were granted 30 days to file their supplementary record of appeal. The record shows that the said supplementary record of appeal was belatedly filed on 3/11/2025. The Appellants attribute the delayed filing thereof to the lower court’s delay in furnishing the decree. 8.The provisions of Order 42 Rule 13 (f) of the Civil Procedure Rules make it elective that either the judgment, order or decree appealed from, can be availed. 9.The court notes that the judgment appealed from has been availed, and the Respondent has not disclosed what prejudice she will suffer if the supplementary record of appeal, which only contains the decree, is admitted out of time. 10.In the spirit of Articles 50 and 159 (2) (d) of the Constitution and the overriding objectives under sections 1A and 1B of the Civil Procedure Act, this court will render substantive justice by admitting the Supplementary Record of Appeal. Orders 11.Accordingly, for the reasons set out above, this court finds that the application dated 8/1/2026 is without merit and it is dismissed. 12.The costs of the application shall be costs in the appeal.Orders accordingly. DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.EDWARD M. MURIITHIJUDGEAPPEARANCES:Mr. Mugo for the Appellant.Mr. Nduva Kitonga for the Respondents.