Ogeto v Bosire (Civil Appeal E081 of 2025) [2026] KEHC 13254 (KLR) (21 May 2026) (Ruling)

Ogeto v Bosire (Civil Appeal E081 of 2025) [2026] KEHC 13254 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 13254 (KLR) Republic of Kenya In the High Court at Nyamira Civil Appeal E081 of 2025 TW Cherere, J May 21, 2026 Between Evans Ogeto Appellant and Caroline Marisela Bosire Respondent Ruling 1.Before the Court is the Notice of Motion dated 08th December 2025 by Caroline Marisela Bosire, the Respondent/Applicant seeking to strike out the Memorandum of Appeal dated 24th November 2025 on the ground that the appeal was filed out of time and without leave. The application is supported by the Applicant’s Supporting Affidavit of sworn on even date and the annexures thereto, including the Memorandum of Appeal marked “CMB 2”. 2.The Applicant contends that judgment in Nyamira CMCC No. 93 of 2018 was delivered on 23rd October 2025 and that the appeal herein was filed three (3) days outside the period prescribed under Section 79G of the Civil Procedure Act without leave of the court. 3.The application is opposed through the Replying Affidavit sworn by Evans Ogeto on 14th May 2026 together with the Appellant’s written submissions dated even date. The Appellant concedes that the appeal was filed outside the statutory period provided under Section 79G of the Civil Procedure Act but contends that the delay was neither intentional nor inordinate, and was occasioned by delay in obtaining a copy of the judgment. 4.There is no dispute that the appeal was lodged three (3) days out of time. However, the Memorandum of Appeal raises substantive issues touching on ownership of the motor vehicle, apportionment of liability, reliance on the police abstract report, and the trial court’s evaluation of the evidence on record. 5.The court has considered the decision in Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] KECA 875 (KLR)wherein the Court of Appeal emphasized the need for courts to balance procedural requirements against the broader duty to facilitate substantive justice and the proportionate determination of disputes. 6.Articles 48 and 159(2)(d) of the Constitution together with Sections 1A and 1B of the Civil Procedure Act obligate the court to facilitate substantive justice. In the circumstances of this case, the court is not persuaded that the delay of three (3) days warrants striking out the appeal at this stage, particularly where no material prejudice has been demonstrated. 7.Consequently, the Notice of Motion dated 08th December 2025 lis hereby disallowed. The appeal is deemed as properly on record. Costs shall abide the outcome of the appeal. Top of Form DELIVERED AT NYAMIRA THIS 21ST DAY OF MAY 2026WAMAE.T. W. CHEREREJUDGEAppearancesCourt Assistant - HildaFor Appellant/Applicant - Mr. Sagwa for C.R.Sagwa & Co. AdvocatesFor Respondent - Mr. Omwoyo for Moerwa Omwoyo & Co. Advocates