https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7316

Kenya National Examination Council v County Director of Education, Bungoma County & 2 others (Civil Appeal E087 of 2025) [2026] KEHC 7316 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEHC 7316 (KLR) Republic of Kenya In the High Court at Bungoma Civil Appeal E087 of 2025 REA Ougo, J May 15, 2026 FORMERLY MILIMANI CASE NO. HCCTA E009 OF 2025 Between Kenya National Examination Council Applicant and County Director of Education, Bungoma County Respondent and Ministry Of Education 1st Interested Party Lugulu Girls High School 2nd Interested Party Ruling 1.The appellant/applicant filed a Notice of Motion dated 4th December 2025, seeking orders to extend the interim stay of execution and implementation of the judgment and order of the National Examination Appeals Tribunal delivered on 28th March 2025 at Nairobi in TRNEAT No. E022 of 2025, which lapsed on 8th October 2025, pending the hearing and determination of the appellant’s/applicant’s appeal. 2.In a Notice of Preliminary Objection dated 26.5.2025, the Respondent states that the Memorandum of Appeal dated 28 April 2025 is incompetent because it was filed out of time. The Appellant failed to apply for an extension of time before or at the time of filing the Memorandum of Appeal. Consequently, the Appeal is incurably defective and should be dismissed. Accordingly, the Respondent prays that this Honourable Court be pleased to: decline any afterthought application for an extension of time, strike out the Appeal as incompetent, dismiss the Appeal with costs, and make any further orders the Court may deem fit in the interests of justice. 3.The appellant/ applicant opposed the preliminary objection. 4.The Respondent filed a written submission and reiterated it orally in court. The Respondent submitted as follows: The National Examination Appeals Tribunal delivered its judgment on 28 March 2025. The Tribunal found in favour of the Respondent and directed the Appellant to reinstate the original marks of Candidate No. 36600002022 and to issue a valid results slip within 14 days. Dissatisfied with the judgment, the Appellant prepared a Memorandum of Appeal dated 28 April 2025. However, the court record shows that filing fees were paid on 29 April 2025, the date the appeal was lodged in law. This was 31 days after the Tribunal delivered its judgment. No leave of this Honourable Court was sought before filing the appeal outside the statutory time limit. Accordingly, the Respondent/Applicant challenges the competency of the Appeal. 5.It was further submitted that the issues arising for determination are: how the time for filing an appeal is computed under the law, whether the Appellant’s Memorandum of Appeal was filed out of time, when a court document is deemed filed in law; and whether leave of Court was sought or obtained before filing the appeal. 6.On the computation of time for filing an appeal, it was submitted that Section 79G of the Civil Procedure Act provides that appeals must be filed within thirty (30) days of the decree or order appealed against, excluding any time certified as necessary for the preparation and delivery of a copy of the decree or order. Section 57 of the Interpretation and General Provisions Act, Cap 2, provides that the first day is excluded and the last day is included, unless the last day falls on a Sunday or public holiday. The Tribunal's judgment was delivered on 28 March 2025. Time began to run on 29 March 2025. Thirty days lapsed on 27 April 2025. Since 27 April 2025 was a Sunday, the last day for filing became Monday, 28 April 2025. 7.On whether the appeal was filed out of time, it was submitted that, on the face of the Memorandum of Appeal, it is dated 28 April 2025. However, filing is complete only when the court fees are paid. The court record confirms that payment was made on 29 April 2025. The Court of Appeal, in Fidelity Commercial Bank Ltd v Samuel Kamau Macharia & 3 others [2015] KECA 887 (KLR) [page 2], held that a document is deemed filed on the date the filing fee is paid, rather than on the date the necessary administrative actions, such as assessment, take place. By paying the filing fees on 29 April 2025, the Appellant lodged the appeal one day outside the statutory period, thus rendering it incurably defective. What should happen if a party misses the statutory deadline for filing an appeal? What is the status of documents submitted after the deadline? The Supreme Court of Kenya addressed these legal questions in the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR [Para 54, page 12]. The Court emphasised the critical importance of adhering to filing timelines, holding that documents filed out of time, before seeking an extension of time, are null and void. 8.On whether leave was sought before filing the appeal, it was submitted that the appellant has not filed any application for an extension of time nor provided an explanation for the delay. The proviso to Section 79G expressly requires that appeals out of time can be admitted only if the appellant satisfies the court that there was good and sufficient cause. The relevant question is at what stage leave should be sought to explain the delay. The Supreme Court has clarified this in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR [Paras 53, 54]. It reasoned and held as follows: - a) Filing an appeal out of time before first seeking an extension, and thereafter requesting the court to extend time and recognise such filing as an appeal, amounts to inviting the court to cure an illegality. The court cannot do so. No appeal may be filed out of time without the court's prior leave. Filing an appeal out of time without first obtaining leave renders the documents filed a nullity, devoid of any legal consequence. Accordingly, the court ought not to accept such documents. 9.The proper procedure when one is out of time is to file an application for an extension of time and annex the intended ‘draft appeal’ for the court’s consideration and determination. In Stella Ndemange v Nancy Otieno Owiti [2021] KEELC 4249 (KLR), [para 13 page 2], the Court struck out an appeal filed out of time without leave, holding that the Court’s jurisdiction can only be invoked where the appeal is filed within time or with leave. In Patrick Kiruja Kithinji v Victor Mugira Marete [2015] eKLR, [para 12 page 3], the Court of Appeal held that lateness in filing an appeal goes to jurisdiction and cannot be cured under Article 159 of the Constitution. The Court went further, being guided and bound by the position of the Supreme Court in Nicholas Kiptoo (supra), and struck out an appeal filed out of time without leave. In conclusion, the Respondent submitted that the Appellant has filed an appeal outside the prescribed time frame and without seeking permission, attempting to present an illegality as if it were legitimate. The law clearly states that any submission made outside the designated time, without proper leave, is null and void - like a ghost in the legal system, unrecognised by the law and unheard by justice. This Honourable Court now faces a critical decision: Should it entertain an appeal that violates statutory timelines and jurisdictional standards, or should it uphold the integrity of the legal process and prioritise the best interests of the child? The Respondent requests that the Court strike out the appeal as incompetent and restore dignity to the child’s educational journey. The Respondent accordingly prays that the Preliminary Objection dated 26 May 2025 be upheld and that the Memorandum of Appeal be struck out with costs to the Respondent. 10.The appellant/applicant submits as follows. The Respondent’s Notice of Preliminary Objection is fatally defective, as it is unpleaded in any of the Respondent’s documents filed in Court. The Respondent’s Replying Affidavit, sworn on 25th August 2025, does not raise any preliminary issue or any point of law. The Respondent’s Notice of Preliminary Objection, dated 26th May 2025, is not anchored in any pleading; hence, it is fatally defective and should be dismissed on this basis alone. In support of this submission, the Appellant relied on the case of Shah & another v County Government of Kisumu & another; Kisumu City Board (Interested Party) (Environment & Land Petition E005 of 2020) [2022] KEELC 15409 (KLR) (19 December 2022) (Ruling), where he held as follows: - “That the other issue militating against the grant of the orders sought by the respondents is that the issues raised in their notice of preliminary objection are not anchored in any pleading on record.” 11.It was submitted that the respondents filed grounds of opposition, an answer to the petition, and a cross-petition. In none of these documents did the respondents raise the issues that are the subject of their preliminary objection. As held in the authorities cited, a preliminary objection should be based on a point of law that has been pleaded. In this case, the points of law on which the respondents have grounded their preliminary objection are not pleaded. The objection lacks foundation in the circumstances. 12.It was further submitted that the other issue raised by the petitioners, to which the respondents did not respond, was the fate of their cross-petition after the striking out of the petitioners’ petition. That by filing a cross-petition, the respondents waived their rights, if any, to raise the issues the subject of the cross-petition. There is no merit in the respondents’ and the interested party’s notice of preliminary objection dated July 6, 2022; the objection is dismissed with costs to be in the cause.” The Appellant relied on the decision of the Court in the case Sautet v Kombei & 5 others (Environment & Land Case 6 of 2022) [2023] KEELC 21615 (KLR) (20 November 2023) (Ruling) where the Honourable Court held as follows: - Secondly, the defendants’ preliminary objection is not anchored on any pleadings. The only pleadings on record are those by the plaintiff. After the service of the defence, the plaintiff will still have a right to file a reply to the defence. (See page 18 hereof) 5. 6. 7. 8. 9. 13.As regards the Respondent’s allegation that the Appeal is time-barred, it was submitted that the Memorandum of Appeal was filed within time and the Record of Appeal expeditiously prepared and filed. It is undisputed that the Tribunal Judgement was delivered on 28th March 2025. The Appellant was dissatisfied with the Judgment of the Tribunal and requested proceedings from the Tribunal by way of its letter dated 2nd April 2025. The memorandum of Appeal dated 28th April 2025 and filed in Court on the same date. The Appeal is therefore not time-barred by a day as submitted by the Respondent. The Appeal was filed within time. The payment was, however, paid on 29th April 2025. The Appellant filed this Appeal on the last day, 28th April 2025, at the proceedings, a certified copy of the judgment and order of the Tribunal in order to file a complete Appeal. This, however, never materialised as the Appellant received a certified copy of the judgment on 9th April 2025. The Appellant was therefore forced to file the Appeal on 28th April 2025, the last day for filing. Should the Court find that the Notice of Preliminary Objection is merited, the court should not strike out the Appeal but exercise its discretion and invoke Section 1A, 1B and 3A of Civil Procedure Act to suspend striking out and allow the Appellant to file a necessary application to extend time to file the Appeal. When faced with the same circumstances, the Court of Appeal held as follows in the case of KCB Bank Kenya Limited v Mwandoro (Civil Application E044 of 2021) [2023] KECA 260 (KLR) (17 March 2023) “In the premises, the order that commend itself to us and which we hereby make is that while the application dated June 4, 2021 is merited and while we grant the same and strike out the Notice of Motion, we suspend the effective date of the order striking out the Notice of Appeal for a period of 14 days from the date hereof. Within that period, the Respondent shall be at liberty to file and serve the requisite application for the extension of time under Rule 4 of this court’s rules. If such an application is made within the said period, the order of striking wait will await the outcome of the said application. However, in default of making the said application within the said period, the notice of appeal  led on May 10, 2021 in Mombasa ELRC Cause No 38 of 2019 shall stand struck out. Either way, the costs of this application are awarded to the applicant. (See page 23 hereof) 10. Additionally, in the case of Taib & another v Wekesa & another ((Suing as the legal representative of the Estate of George Ellam Wekesa)) (Civil Application 41 of 2019) [2022] KECA 444 (KLR) (18 March 2022) (Ruling), the Court held as follows: - 18.The court can invoke the overriding principle only in well deserving cases, depending on its own peculiar circumstances, as the overriding principle is not a panacea for all ills and in every situation. Proper basis must be laid before the court, and the court giving effect to that principle must do so judiciously and with proper and explicable foundation. That was the holding in this court’s case of Murandula Suresh Kantaria Vs Suresh Nanalal Kantaria Civil Appeal No. 277 of 2005. 19.The Respondent has explained that the delay was inadvertent having been occasioned by following up of the documents from the court. We find the explanation reasonable. The delay involved was one day. This is not inordinate. .As a result, the undeniable fate of an appeal filed out of time without leave of the court is to be struck out. However, in the interest of justice we hereby suspend the order of striking out the Record of Appeal for a period of 45 days from the date hereof. Within that period the Respondents shall file and serve the requisite application for the extension of time under Rule 4 of this court’s rules and in default the appeal will stand struck out with costs to the applicants. The Applicants will have the costs of this application in any event. 14.The Appellant herein urged the Court not to invoke the coercive power to strike out the Appeal, even if the Court finds that the Appeal was filed out of time by a day, but instead to be guided by the referenced decision, which would allow the Appellant to make the necessary application in the interests of justice, rather than starting all over again. Determination 15.It is well established that a Preliminary Objection must raise a pure point of law. The principles governing preliminary objections were set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. Sir Charles Newbold, P. stated:“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law... It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 16.The applicant has raised the issue that a preliminary objection must be pleaded by the party. In my view, a party may raise a preliminary objection at any stage before the close of pleadings. In the case of Mukisu Biscuit (supra), it was held that the objection must be on a point of law. The respondent's case is that the appeal was filed without the court's leave. The memorandum of appeal is dated 28.4.2025 but was paid for on 29.4.2025. A document is valid only when it is paid for. The appeal, therefore, was filed without the court's leave, a day after the 30-day period provided under section 79 G of the Civil Procedure Act. 17.In the instant application, the applicant is seeking a stay of execution without a prayer to file the appeal out of time. Section 79 G has a proviso which states as follows;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.In my view, it can only apply if the applicant had sought permission to appeal out of time. 18.I appreciate that the delay was only one day, but I am guided by the authority of Nicholas Kiptoo (supra), which struck out an appeal filed out of time without leave. The appellant admits the delay; this court lacks jurisdiction to entertain the appeal. The reasons advanced by the appellant may be raised if an application to file the appeal out of time is made. I find merit in the application and strike out the appeal with costs to the respondent. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF MAY 2026.R.E.OUGOJUDGEIn the presence of:Mr. Kichwen for the RespondentMr. Sewe for the AppellantWilkister C/A