Ogeto v Omwoyo (Civil Appeal E074 of 2025) [2026] KEHC 13245 (KLR) (21 May 2026) (Ruling)
Although the appeal was filed 18 days late under section 79G, the court found that the memorandum raised triable issues, the delay was not shown to be inordinate or intentional, and no sufficient prejudice to the respondent was demonstrated. Applying Article 159(2)(d), the oxygen principle, and the interests of...
Source-derived case information.
- Citation
- [2026] KEHC 13245 (KLR)
- Parties
- Appellant: Evans Ogeto; Respondent/applicant: Ebisiba Nyaboke Omwoyo
- Court
- High Court
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E074 of 2025
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion to Strike Out Appeal
- Outcome
- Notice of Motion disallowed; appeal preserved.
- Judges
- ["TW Cherere"]
- Legal Topics
- Extension of Time for Filing Appeal, Striking Out Appeal Filed Out of Time, Section 79 G Civil Procedure Act, Oxygen Principle, Article 159(2)(d) Constitution, Triable Issues, Prejudice in Procedural Default
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Ogeto
Appellant
Ebisiba Nyaboke Omwoyo
Respondent/applicant
Procedural Posture
Civil Appeal / Ruling on Notice of Motion to Strike Out Appeal
Legal Issues
- 1 Whether the memorandum of appeal was filed out of time under section 79G of the Civil Procedure Act
- 2 Whether the delay in filing the appeal was inordinate or excusable
- 3 Whether the appeal should be struck out for want of leave
Ratio Decidendi
Although the appeal was filed 18 days late under section 79G, the court found that the memorandum raised triable issues, the delay was not shown to be inordinate or intentional, and no sufficient prejudice to the respondent was demonstrated. Applying Article 159(2)(d), the oxygen principle, and the interests of substantive justice, the court declined to strike out the appeal.
Court Disposition
Notice of Motion disallowed; appeal preserved.
Orders
- The Notice of Motion dated 08th December 2025 is disallowed.
- The appeal is deemed properly filed and properly on record.
Full Case Text
Judgment text and source record
1 paragraphs
Ogeto v Omwoyo (Civil Appeal E074 of 2025) [2026] KEHC 13245 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 13245 (KLR) Republic of Kenya In the High Court at Nyamira Civil Appeal E074 of 2025 TW Cherere, J May 21, 2026 Between Evans Ogeto Appellant and Ebisiba Nyaboke Omwoyo Respondent Ruling 1.Before the Court is the Notice of Motion dated 08th December 2025 by the Ebisiba Nyaboke Omwoyo, the Respondent/Applicant seeking orders that the Memorandum of Appeal dated 24th November 2025 and filed on 26th November 2025 be struck out for having been filed outside the statutory period and without leave of the Court. The application is supported by the the Respondent/Applicant’s Affidavit of sworn on even date together with the annexures marked “ENO 1” and “ENO 2”. 2.Evans Ogeto. the Respondent/Applicant by his replying affidavit sworn on 14th May 2026 contends states that the appeal raises serious and arguable issues touching on ownership of the motor vehicle, proof of negligence and the evidentiary value of the police abstract report. He further avers that the delay in filing the appeal was neither intentional nor inordinate and was occasioned by delay in obtaining the judgment and urges the Court to sustain the appeal for hearing on merit. 3.Judgment in the lower court was delivered on 09th October 2025, while the present appeal was filed on 26th November 2025. The appeal was therefore lodged 18 days beyond the statutory period of 30 days provided under section 79G of the Civil Procedure Act. 4.The Court has nevertheless considered the Memorandum of Appeal and finds that it raises triable issues touching on ownership of the motor vehicle, proof of negligence and the evidentiary value of the police abstract report. In Mae Properties Limited v Kibe & another [2017] KECA 238 (KLR), the Court of Appeal emphasized that courts should exercise procedural discretion in a manner that facilitates substantive justice and avoids shutting out parties from the seat of justice where the circumstances justify sustaining proceedings. 5.Guided by the oxygen principle and Article 159(2)(d) of the Constitution, the Court is not persuaded that the delay disclosed in the present matter warrants the drastic remedy of striking out the appeal. The Court further finds that no prejudice has been demonstrated by the Respondent/Applicant sufficient to justify terminating the appeal without hearing it on merit. 6.Consequently, the Notice of Motion dated 08th December 2025 is hereby disallowed. The appeal is deemed as properly filed and properly on record. Costs shall abide the outcome of the appeal. 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