Somoni v Muangi (Appeal E109 of 2024) [2025] KEHC 9582 (KLR) (Family) (4 July 2025) (Ruling)
Neutral citation:
[2025] KEHC 9582 (KLR)
Republic of Kenya
Appeal E109 of 2024
H Namisi, J
July 4, 2025
Between
Joyce Bosibori Somoni
Appellant
and
Sammy Musili Muangi
Respondent
Ruling
1.This appeal arises from a divorce cause. Judgement was rendered therein on 9 January 2024. Being dissatisfied with the whole judgement and decree, the Appellant filed Memorandum of Appeal dated 12 September 2024.
2.By Notice dated 7 November 2024, the Respondent raised a preliminary objection on the following grounds:i.That the appeal was filed out of the statutory time of 30 days;ii.That the Appellant did not obtain the leave of this Court to file the appeal out of time;iii.That the appeal offends the provisions of section 79(G) of the Civil Procedure Act and ought to be struck out and/or dismissed with costs to the Respondent.
3.The Appellant did not file any response to the Application.
4.The Application was canvassed by way of written submissions. Once again, the Respondent did not file any submissions.
5.In their brief submissions, the Respondent relied on the Supreme Court case of Bookpoint Ltd -vs- Guardian Bank Ltd & Guilders International Bank Ltd; Applic No. 4 (E006) of 2021, where the Court held that the filing of a Petition or Memorandum of Appeal out of time without leave is inappropriate and renders such a petition a nullity which cannot be cured by a subsequent application for leave to enlarge time.
6.I have read the Preliminary Objection and the Submissions filed herein. The primary issue for determination is whether the Notice of Preliminary Objection has merit.
7.The Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others cited the leading decision on Preliminary Objections, Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. (1969) EA 696, where the Court held as follows:
8.The Supreme Court in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR made the following observation as relates to Preliminary Objections:
9.The legal threshold for a preliminary objection to lie is well settled. Gikonyo J in Catherine Kawira v Muriungi Kirigia [2016] eKLR put it succinctly thus;
10.Section 79G of the Civil Procedure Act, Cap 21 provides as follows:
11.Whereas the impugned judgement was delivered on 9 January 2024, it was not until 12 September 2024 that the Appellant lodged this appeal. The Memorandum of Appeal makes reference to leave granted on 30 August 2024, but the Appellant did not place the same before the Court for consideration. In fact, the Appellant has not responded to the Preliminary Objection at all.
12.The Appellant filed the Memorandum of Appeal nine months late. There is no good cause demonstrated by the Appellant why the appeal was not filed in time. Under the Rules, where the Appellant realised that time had lapsed, she ought to have moved the Court and sought leave to file the appeal out of time, giving reasons.
13.In the case of Stanley Kahoro Mwangi, Timothy Njoroge & Joseph Mwangi (suing on behalf of Twendane Company Ltd) -vs- Kanyamwi Trading Company Ltd [2015] KECA 967 (KLR) the Court held that that an applicant seeking to file an appeal out of time must have a plausible and satisfactory explanation for the delay for the court to address. The right of appeal must be exercised within the rules of procedure applicable to ensure justice to all parties.
14.An appeal filed out of time cannot be cured under any other law or procedure. It cannot stand or be argued. I, therefore, uphold the Preliminary Objection and dismiss this cause with costs to the Respondent, assessed at Kshs 20,000/-.
DATED AND DELIVERED AT NAIROBI THIS 4 DAY OF JULY 2025HELENE R. NAMISIJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:For Appellant: Mr. OmondiFor Respondent: Mr. MuthamaCourt Assistant: Libertine Achieng