Ndegwa & another v Khaemba & 3 others (Civil Appeal (Application) E093 of 2023) [2025] KECA 2322 (KLR) (19 December 2025) (Ruling)

Facts

The appellants filed the notice of appeal on 20th January 2023 and the record of appeal on 15th May 2025, which was 117 days outside the prescribed period. The applicants instructed Majan Maitethia & Associates Advocates to represent them and filed an application to strike out the appeal, but the advocates failed to do so. The applicants engaged M/s Mwangi & Ngatia Advocates who discovered that the previous advocates had entered into a consent for stay of execution of the judgment without authority of the applicants.

Issues

1. Whether the applicants have advanced compelling reasons for the delay in filing their application outside the 30 days' statutory period under rule 86.
2. Whether the applicants have established any fraud on the part of the appellants or their advocates in relation to the consent recorded on 1st November, 2023.

Reasoning

The applicants have explained the delay in filing the application and have not been prejudiced by the delay. The applicants earnestly desire to pursue the striking out of an improper appeal.

Outcome

The application is allowed.