https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11846

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **(MILIMANI COMMERCIAL AND TAX DIVISION)** **CIVIL APPEAL NO. E205 OF 2024** **CHRISTOPHER OCHIENG' ODOTE ................. APPELLANT/APPLICANT** **-VERSUS-** **COMMISSIONER OF INSURANCE ................................... RESPONDENT** **OLD MUTUAL ASSURANCE KENYA LIMITED ... 1ST INTERESTED PARTY** **OFFICE OF THE AUDITOR GENERAL ............ 2ND INTERESTED PARTY** **RULING** 1. This is a hotly contested application. It is a classic confrontation between the sanctity of procedural timelines and the Court’s constitutional mandate to do substantive justice. 2. The Applicant seeks leave to file an appeal out of time against the judgment of the **Insurance Appeals Tribunal** delivered on 08th March., 2024. He further asks this Court to deem his already-filed Memorandum of Appeal as duly filed within time. 3. The Respondent raises a Preliminary Objection dated 15th May, 2025. They argue that the application is bad in law because the appeal was filed before leave was granted. They contend the application is a nullity. **Background Facts** 4. The **Insurance Appeals Tribunal** delivered its judgment on 08th March, 2024. 5. The Applicant alleges he was not served with a notice of judgment. He claims to have learned of the decision on 11th July, 2024. 6. The Applicant filed his Memorandum of Appeal on 09th August, 2024. He subsequently filed the instant application for leave to appeal out of time on 25th October, 2024. 7. The Applicant seeks orders which we summarise as follows: *a) THAT the Court be pleased to grant the Applicant/Appellant leave to appeal out of time from the Judgment delivered by the Insurance Appeals Tribunal in Insurance Appeals Tribunal Case No. NO. 2 of 2023 on the 8th day of March 2024.* *b) THAT the Memorandum of Appeal dated 9th August, 2024 filed in this matter be deemed to be duly filed within time.* *c) The costs of this application be in the cause.* **Issues for Determination** 8. The Court ha s considered the Application, Response, the Preliminary Objection, the written Submissions and the oral highlights by Counsel for the parties. The Court frames three (3) issues for determination as follows: * 1. *Whether the Preliminary Objection is merited.* 2. *Whether the Applicant has demonstrated good and sufficient reasons for the grant of leave to appeal out of time.* **Analysis** 9. The power to grant leave to file an appeal out of time or to extend time for filing an Appeal is provided for by **Section 79G of the Civil Procedure Act** and **Order 50 Rule 6 of the Civil Procedure Rules**. That power is discretionary as set out in the decision of ***Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR)*** **a) Whether the Preliminary Objection is merited.** 10. The Respondent relies on ***Nicholas Kiptoo Arap Korir Salat v. IEBC & 7 Others* [2014] eKLR**. They argue that filing an appeal before seeking leave is an illegality that cannot be remedied. 11. The Court acknowledge the strictures laid down in the *Salat case*. However, the decision still recognises the discretion o the Court. 12. Under **Article 159(2)(d) of the Constitution**, this Court must administer justice without undue regard to procedural technicalities. **Sections 1A** and **1B of the Civil Procedure Act reinforce** the "Oxygen Principle"—the overriding objective to achieve the just, expeditious, and proportionate resolution of disputes. 13. The jurisprudential position is that while seeking leave *before* filing is the gold standard, seeking it *after* filing is not an automatic death knell. It is an irregularity. Courts have frequently exercised discretion to "breathe life" into such matters, provided "good and sufficient cause" is shown. See ***Singh v Awa* [2025] KEELRC 26** and ***Muchemi v Roy Transmotors Ltd* [2025] KEELRC 650.** 14. Once the Court is called upon to exercise discretion or determine contested facts, the point can no longer be called a pure point of law. See **Charo v Mwashetani & 3 others [2014] KESC 5 (KLR)**. The Court is not persuaded that the Preliminary Objection is merited. The Preliminary Objection is overruled. The procedural lapse is curable where substantive justice demands it. **b)** **Whether the Applicant has demonstrated good and sufficient reasons for the grant of leave to appeal out of time.** 15. The Tribunal admitted, in writing, that it failed to issue a judgment notice. This is a profound systemic failure. 16. The Applicant only learned of the judgment on 11th July, 2024. He acted with reasonable dispatch thereafter. This constitutes "good and sufficient cause" under **Section 79G of the Civil Procedure Act**. 17. The Respondent has not demonstrated that they will suffer irreparable prejudice. Justice requires that the Appellant be heard on the merits. This right to hear the other side is one that will always be jealously guarded, protected and promoted by this Court. It is not enough to say that the parties were present during the trial, they also have a right to be present and be heard during the delivery of a judgment. Due to post judgment processes like filing an Appeal which are time bound, failure to give Judgment on notice has serious prejudice. It also leaves a bitter taste in the mouth of the affected party. It raises complaints of bias and favouritism all which can be avoided. Once it’s brought to the attention of the Court that a decision was issued without notice, the Court ought to act quickly to ameliorate the prejudice to the affected party. See **Leiyagu v Independent Electoral and Boundaries Commission & 2 others [2013] KECA 282 (KLR)**. 18. The Court has said enough to show that it is persuaded to allow the Appellant’s Application. 19. As to costs the same lie at the discretion of this Court. Costs ordinarily follow the event. The Court is minded to order that costs in this instance be costs in the cause. **Determination** 20. The Court proceeds to determine the Notice of Preliminary Objection dated 15th May, 2025 and the Notice of Motion dated 25th October, 2024 in the following manner: 1. *The Notice of Preliminary Objection dated 15th May, 2025 is overruled and is HEREBY dismissed.* 2. *THAT the Court HEREBY grants the Applicant/Appellant leave to appeal out of time from the Judgment delivered by the* ***Insurance Appeals Tribunal*** *in Insurance Appeals Tribunal Case No. 2 of 2023 on the 8th day of March, 2024.* 3. *THAT the Memorandum of Appeal dated 9th August, 2024 filed in this matter is HEREBY deemed to be duly filed within time.* 4. *THAT the costs of this application be in the cause.* 21. It is so ordered. **DATED, SIGNED AND DELIVERED AT MILIMANI THIS 29TH DAY OF JULY, 2026** **NJOROGE BENJAMIN K.** **JUDGE** In the presence of: Miss Ouko holding brief for Mr. Ogutu for the Appellant/Applicant. Miss Kihima holding brief for Miss Langat for the 1st for the Respondent. N/A for the 1st Interested Party/Respondent. Miss Andenyi for the 2nd Interested Party/Respondent. Mr. John Paul - Court Assistant.