https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8406

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPELLATE DIVISION** **HCCA NO. E292 OF 2025** **ROSE MUTETE T/A MUTETE JOHN &.** **COMPANY ADVOCATES………………………………….........APPELLANT** VERSUS **UNEECO PAPER PRODUCTS LIMITED...............................RESPONDENT** **RULING** 1. The dispute herein arises from a judgment delivered by Hon. Justine Asiago in the Small Claims Court at Nairobi on 28th February 2025. Dissatisfied with the decision, the Appellant filed a document titled "Notice of Appeal" dated 6th March 2025 and filed on 12th March 2025. A Memorandum of Appeal was subsequently filed on 28th October 2025. 2. The Respondent contends that the appeal was not properly instituted as required by law and that the Memorandum of Appeal was filed long after the expiry of the statutory period without leave of the Court. 3. The Appellant, on the other hand, argued that the Notice of Appeal substantially complied with Order 42 Rule 1 of the Civil Procedure Rules, contained the grounds of appeal and should be treated as a Memorandum of Appeal pursuant to Article 159(2)(d) of the Constitution. 4. This ruling is in respect to the Notice of Preliminary Objection dated 1st December 2025 seeking the striking out of the appeal on grounds that: 5. ***The appeal was not instituted in accordance with Order 42 Rule 1 of the Civil Procedure Rules.*** 6. ***The Appellant filed a Notice of Appeal instead of a Memorandum of Appeal.*** 7. ***The appeal was filed outside the statutory period prescribed under Section 79G of the Civil Procedure Act.*** 8. ***No leave was sought or obtained to file the appeal out of time.*** 9. ***The Court lacks jurisdiction to entertain the appeal.*** 10. I have considered the Notice of Preliminary Objection, the parties’ written submissions and the applicable law and I find that the following issues arise for determination: 11. ***Whether the Preliminary Objection raises a proper point of law.*** 12. ***Whether the appeal was competently instituted.*** 13. ***Whether the appeal was filed within the period prescribed by law.*** 14. ***Whether Article 159(2)(d) of the Constitution cures the defects complained of.*** **Analysis and Determination** **Preliminary Objection** 1. It is trite that a Preliminary Objection must raise a pure point of law capable of disposing of the matter without requiring ascertainment of facts. (See ***Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd* [1969] EA 696**). 2. The objection herein concerns the form of instituting the appeal, compliance with statutory timelines and jurisdiction. The relevant dates when certain actions were taken are not disputed. I find that the objection raises pure questions of law and is properly before the Court. **Competence of the Appeal** 1. Order 42 Rule 1(1) of the Civil Procedure Rules provides that every appeal to the High Court shall be by way of a Memorandum of Appeal signed in the same manner as a pleading. 2. The language employed by the above-cited Rule is mandatory and prescribes the mode of instituting an appeal through a Memorandum of Appeal. 3. In the instant case, I note that the Appellant initially filed a document titled “Notice of Appeal”. 4. My finding is that unlike appeals to the Court of Appeal governed by the Court of Appeal Rules, there exists no provision under the Civil Procedure Act or Civil Procedure Rules authorizing commencement of an appeal to the High Court through a Notice of Appeal. I nevertheless note that the document filed on 12th March 2025 contained detailed grounds challenging the decision of the Small Claims Court. 5. The question therefore becomes whether the misdescription of the pleading is fatal. Courts have consistently held that substance prevails over form where the document substantially complies with the law. In ***Achiando vs. Domo & 2 Others* [2025] KEELC 798**, the Court observed that procedural defects that do not go to jurisdiction may be cured through amendment. 6. Similarly, in ***African Floralush (PTY) Ltd t/a Iluba & Another vs. Marcel & Another* [2025] KEHC 12051**, the Court emphasized that defects not affecting substance should not defeat substantive justice. 7. I find that had the only issue before the Court been the nomenclature of the pleading, the Court would have been inclined to treat the Notice of Appeal as a Memorandum of Appeal in furtherance of Article 159(2)(d) of the Constitution. However, that is not the only issue before the Court. **Time** 1. Section 79G of the Civil Procedure Act provides that every appeal from a subordinate court to the High Court shall be filed within thirty days from the date of the decree or order appealed against. 2. In the present case, the judgment sought to be appealed from was delivered on 28th February 2025. This means that the statutory period expired on or about 31st March 2025. The Memorandum of Appeal presently on record was filed on 28th October 2025 approximately seven months outside the statutory period. 3. The Appellant neither sought nor obtained leave to appeal out of time. No application for extension of time appears on the record. 4. Courts have repeatedly emphasized that statutory timelines are substantive legal requirements. In ***Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others* [2014] KESC 12**, the Supreme Court held that extension of time is not a right and that statutory timelines cannot be ignored. 5. Similarly, in ***Nyaga & Another vs. Kinyua* [2025] KEHC 16960**, the Court held that an appeal filed out of time without leave is incompetent. 6. The requirement under Section 79G of the CPA goes beyond a mere procedural technicality as it is a jurisdictional prerequisite. I therefore find that without leave extending time, the Court lacks jurisdiction to entertain an appeal filed outside the prescribed period. **Article 159(2)(d) of the Constitution** 1. The Appellant has heavily relied on Article 159(2)(d) of the Constitution as capable of curing the defects on the appeal. 2. It is not in doubt that courts are obligated to administer justice without undue regard to procedural technicalities. However, Article 159 was never intended to override mandatory statutory provisions. Indeed, in ***Nicholas Salat vs. IEBC & 7 Others*** (supra) the Supreme Court cautioned that Article 159 of the Constitution is not a panacea for all procedural defaults and cannot be invoked to circumvent express provisions of statute. 3. This Court agrees that while Article 159 of the Constitution may cure defects relating to form, it cannot validate an appeal filed outside the statutory period without leave as the defect in the present appeal is not merely procedural but goes to jurisdiction which cannot be cured by Article 159 of the Constitution. 4. Having regard to the findings and observations that I have made in this ruling, I make the following orders: 5. ***The Respondent’s Notice of Preliminary Objection dated 1st December 2025 is hereby upheld.*** 6. ***The Appeal in HCCA No. E292 of 2025 is hereby struck out for having been filed out of time without leave of the Court.*** 7. ***The Notice of Appeal dated 6th March 2025 and any subsequent Memorandum of Appeal filed on 28th October 2025 are declared incompetent.*** 8. ***The Respondent shall have the costs of the Preliminary Objection and the appeal.*** It is so ordered. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 11TH DAY OF JUNE 2026.** **W. A. OKWANY** **JUDGE** **In the presence of:** Ms Wanjiru for Oduk for Appellant Ms Kimani for Ochieng for Respondent Abdirizak – Court Assistant